Insured fails to establish a compelling need or urgency for interim benefits

February 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Tchertok and RSA – Interim Motion for Benefits; NEB; Attendant care; CAT assessment; overdue payments; interest; Insured fails to establish a compelling need or urgency for interim benefits to be awarded

Tchertok and RSA

Date of Decision: October 17, 2016
Heard Before: Adjudicator Jeffrey Musson

DECISION ON A MOTION

Mr. Efim Tchertok, was injured in car accident on November 10, 2013, when he was rear-ended.  The police did not attend the accident scene nor did an ambulance.  Mr. Tchertok self-reported the accident to the Police Reporting Centre.  He went to the emergency department at Sunnybrook Hospital that evening. He sought accident benefits from RSA, but when the parties were unable to resolve their disputes through mediation Mr. Tchertok applied for arbitration at the FSCO.

The issues in this Motion are:

1. Is Mr. Tchertok entitled to interim non-earner benefits (NEBs) from May 10, 2014 and on-going?
2. Is Mr. Tchertok entitled to interim attendant care benefits from February 25, 2014 to September 15, 2015 by Alert Best in the amount of $24,592.19?
3. Is Mr. Tchertok entitled to interim attendant care benefits from September 15, 2015 and on-going by AGTA Health in the amount of $8,857.68?
4. Is Mr. Tchertok entitled to interim assessment and medical benefits from Success Rehab in the amount of $21,487.75?
5. Is Mr. Tchertok entitled to an interim catastrophic impairment assessment from Omega Medical in the amount of $16,272.00?
6. Is Mr. Tchertok entitled to an interim assessment benefit from Dr. K in the amount of $4,950.00?
7. Is Mr. Tchertok entitled to an interim transportation expense in the amount of $65.00 for parking, dated October 28, 2015?
8. Is Mr. Tchertok entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Tchertok is not entitled to interim non-earner benefits from May 10, 2014 and on-going.
2. Mr. Tchertok is not entitled to interim attendant care benefits from February 25, 2014 to September 15, 2015 by Alert Best in the amount of $24,592.19.
3. Mr. Tchertok is not entitled to interim attendant care benefits from September 15, 2015 and on-going by AGTA Health in the amount of $8,857.68.
4. Mr. Tchertok is not entitled to interim assessment and medical benefits from Success Rehab in the amount of $21,487.75.
5. Mr. Tchertok is not entitled to an interim catastrophic impairment assessment from Omega Medical in the amount of $16,272.00.
6. Mr. Tchertok is not entitled to an interim assessment benefit from Dr. K in the amount of $4,950.00.
7. Mr. Tchertok is not entitled to an interim transportation expense in the amount of $65.00 for parking, dated October 28, 2015.
8. Mr. Tchertok is not entitled to interest for the overdue payment of benefits.

The Arbitrator reviewed the evidence and the law, noting that Section 279(4.1) of the Insurance Act gives Arbitrators the authority to make interim orders regarding accident benefits pending a final decision at an Arbitration Hearing to be conducted later.  While Arbitrators have significant discretionary power, the Insurance Act provides minimal guidance to Arbitrators as to what circumstances must be present for an Arbitrator to award interim benefits.  The Arbitrator relied on prior case law in this area to provide some guidance.

In Ananthamoorthy and TD, Arbitrator Feldman quoted prior cases in his decision to deny interim benefits noting that “arbitrators have given some consideration to the apparent merits of the application, the majority of arbitrators finding that the applicants at least demonstrate a prima facie case.  Arbitrators have not always agreed on what this means.” In this case Arbitrator Musson relied on the evidence presented to determine if Mr. Tchertok’s treatment would be adversely affected if interim benefits were not awarded.  In other words, by denying entitlement, would Mr. Tchertok’s health be irreparably harmed and recovery be adversely affected?

Prior to the start of the Motion, Mr. Tchertok filed three separate motions. 

The first Motion addressed a request by Mr. Tchertok to allow Dr. D and Dr. B to testify at this Interim Benefits Motion.  RSA opposed this Motion because both doctors were retained by Mr. Tchertok as part of his catastrophic impairment (“CAT”) determination.  The Arbitrator agreed with RSA’s position and ruled that both doctors’ testimony was not relevant to this Motion.  The Motion to allow Dr. D and Dr. B to testify at the Interim Benefits Motion was denied.

The second Motion by Mr. Tchertok requested that Ms. GB, the RSA Adjuster, make herself available to testify at this Interim Benefits Motion.  Mr. Tchertok wanted Ms. GB to provide details as to how RSA adjusted his file.  RSA was not intending on calling its adjuster to testify because RSA argued an interim benefits order should be based on medical and benefit need, not how the file was adjusted.  The Arbitrator agreed with Mr. Tchertok’s position and ruled that RSA make Ms. GB available to testify at this Interim Benefits Motion.

The third Motion by Mr. Tchertok related to document productions.  Mr. Tchertok submitted a list of documents he had requested of RSA but had yet to receive.  Mr. Tchertok requested all surveillance, a complete summary of benefits paid to date, the complete notes of all Insurer Examination assessors, including the amount that each assessor invoiced the Insurer, and a list of all adjusters who were assigned to Mr. Tchertok’s file.  The Arbitrator ruled that RSA must hand over all surveillance to Mr. Tchertok, along with a summary of all benefits paid to date, and a list of all adjusters from RSA who have handled Mr. Tchertok’s file.  The Arbitrator found little to no value in allowing an Insurer assessor’s notes to be produced as the invoiced amounts are capped at a rate listed in the Schedule.  If there is a problem with invoiced amounts, this is not the forum in which that discussion should take place.  Therefore, the Arbitrator denied the request of Mr. Tchertok for RSA Examination notes and invoiced amounts.

Background

Following the accident Mr. Tchertok filed an OCF-1 in December of 2013.  His injuries were initially treated within the Minor Injury Guideline (“MIG”), however after reviewing the file, RSA removed Mr. Tchertok from the MIG because of psychological issues as of February 4, 2014.

Is Mr. Tchertok is entitled to interim benefits while waiting for the Arbitration Hearing to take place?  It is important to note that Mr. Tchertok that his current medical clinics have not stopped treating him, and are allowing Mr. Tchertok to receive treatment while his accident benefits claim is in dispute and are just adding the cost of Mr. Tchertok’s treatment to his outstanding bill.

Mr. Tchertok is a 67-year-old man born in Belarus.  Mr. Tchertok currently lives by himself in a subsidized apartment.  He was divorced from his first wife in 1995 and divorced from his second wife in 2010.  The Arbitrator found Mr. Tchertok to be a personable gentleman; however, his testimony was not credible and highly suspect.

Evidence was submitted showing that Mr. Tchertok had significant pre-existing history of physical and pschological issues.  Mr. Tchertok confirmed in his testimony that prior to the accident of November 10, 2013, he suffered from diabetes, hypertension, high blood pressure, and pain in his back, arms and legs.  Mr. Tchertok has had over 160 visits to medical professionals dating back over the past decade, with the vast majority of these visits occurring prior to the accident.

The Arbitrator reviewed the medical evidence pre-and post accident, Mr. Tchetok’s testimony, his financial situation (noting that Mr. Tchertok was on ODSP prior to the accident), evidence of his physical and significant psychological problems, and noted that minimal credible evidence submitted by Mr. Tchertok to directly show that the accident either caused new medical issues or caused his existing medical issues to be exacerbated.

Conclusion

An Arbitrator can order interim benefits when there is a matter of urgency.  Interim benefits are meant to provide a lifeline for an applicant where there is strong financial need with a sense of urgency and risk of irreparable harm if they do not receive benefits.  After analyzing the totality of the evidence presented at this Motion, the Arbitrator did not find this is the case for Mr. Tchertok.

ased on the evidence Mr. Tchertok did not demonstrate a compelling need or urgency for interim benefits to be awarded.  Mr. Tchertok has access to medical treatment.  In addition, he has some assistance (ODSB) for his day-to-day attendant care needs.  Therefore, there is no order for interim benefits at this time.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.