Insurer acts incompetently by ignoring evidence in its possession

October 30, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Dadi and Aviva

Date of Decision: September 20, 2017
Heard Before: Adjudicator Charles Matheson

ENTITLEMENT TO TREATMENT AND MINOR INJURY GUIDELINE(MIG): Insurer choses to ignore medical evidence in its possession; IE lacks credibility as doctor ignores evidence and other assessor acts in self serving manner constituting a breach of trust;

Issues:

Mr. Yeshitla Dadi was injured in a car accident on June 10, 2015, when he and Aviva were unable to resolve their disputes through mediation he applied for arbitration at FSCO.

The issues in this Hearing are:

1. Is Mr. Dadi entitled to receive a medical benefit of $1,822.04 for the treatment plan as submitted on October 23, 2015?
2. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr.Dadi?
3. Is Mr. Dadi entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Dadi is entitled to receive the medical benefit of $1,822.04 for the treatment plan dated October 23, 2015.
2. Aviva is not liable to pay a special award.
3. Mr. Dadi is entitled to interest for the overdue payment of benefits.

Mr. Dadi, 55, is a taxi driver living with his wife and 6 children. He suffered a slip and fall in March 2012, where he injured his left shoulder rotator cuff and fractured ribs on his left side. On April 30, 2013 Mr. Dadi underwent arthroscopic surgery to repair his rotator cuff. On November 24, his right shoulder as well.

Mr. Dadi was involved in a second motor vehicle accident on July 31, 2016. Mr. Dadi was removed from the MIG as of April 2017, therefore the MIG is not in dispute in this Hearing.

Preliminary Issue #1

Mr. Dadi wanted both adjusters involved with this file to be available for examination as Mr. Dadi suggested that the adjusters would be able to shed light on the special award aspect of Mr. Dadi’s claim. The Arbitrator ordered both adjusters should be made available to give evidence at this Hearing, as their actions were relevant to the special award.

Preliminary Issue #2

Mr. Dadi sought to add an attendant care benefit to this arbitration, arguing that the treatment plan in dispute was the gateway for an attendant care Form 1, which should have been generated, if this plan was accepted by Aviva. Aviva argues that Director’s Delegate Evans decision in Duong suggests that Mr. Dadi, after April 1, 2016 cannot add issues not previously mediated, and therefore must arbitrate within at the LAT. Arbitrator Matheson agreed, having no jurisdiction to add an issue as the Report of Mediator, and the Application for Arbitration do not contain or mention a disputed attendant care benefit issue.

Preliminary Issue #3

Mr. Dadi wished to obtain under s. 46 of the Schedule a copy of the business contract between Aviva and their preferred contractors known as LifeMark and Canadian Back Institute. He wanted to investigate how the third-party(s) get(s) paid and the pattern of bonuses (if any) and other forms of remuneration, which may shed light on why Mr. Dadi was left within the MIG for so long. Mr. Dadi suggests that Aviva and CBI acted together in an inappropriate manner, which impacted on how the file was adjusted and whether or not Mr. Dadi was left within the MIG.

Aviva objected to releasing the documents in question as they are privileged.

The Arbitrator deferred a decision on this matter at the beginning of the arbitration and ultimately did not hear any compelling information during the Hearing showing wrong doing and thus ruled against the motion.

EVIDENCE AND ANALYSIS:

The parties agree that the burden to establish entitlement for the medical benefit falls upon Mr. Dadi.

Aviva argues that when the treatment plan was submitted, Mr. Dadi had not proven that he had sustained injuries that were not predominantly minor in nature. As such, coverage in this treatment plan was not available pursuant to the Schedule.

The undisputed evidence contained within the adjuster’s log notes, hospital records, and Mr. Dadi’s family doctor’s clinical notes and records that were relied upon and argued by the parties are listed below. Both of Aviva’s adjusters verified Aviva’s possession of this information in their testimony, and admitted to reviewing the file on numerous occasions.

There was extensive medical evidence from Mr. Dadi’s physicians, hospital visits and surgeries that support his injuries, and their treatment. Despite the evidence of the above timeline Aviva argues that the Arbitrator should prefer the evidence of a physiotherapist, not the doctors. I am unconvinced that she is able to make adequate diagnoses or be relied upon to identify and treat post-concussive symptoms.

The Arbitrator was unable to accept Aviva’s physician as an expert, agreeing with Mr. Dadi’s arguments that he lacked any specific area of speciality, and did not have the enough experience as a health care practitioner to be deemed an expert. The doctor did not have standing in any secondary professional organizations, and was not published on any noted area of practice. Therefore, I limited his evidence to his report alone. The Arbitrator was am unable to place any weight on Dr. Aiello’s reports as he continued to rely heavily on the facts that Mr. Dadi was working and had gone on a vacation in order to support his findings. Further, the doctor testified he did not believe that he should give any relevance or weight to any pre-existing medical conditions, nor did he appreciate or give emphasis to any other medical documentation when conducting his assessments or writing his reports. The doctor did not request further medical records despite the fact that the patient before him was complaining a long list of documented medical problems.  The doctor simply wrote his reports based on his interview. I am unable to give any credence or weight to this doctor’s report.

On this basis the Arbitrator found that Aviva had the information which would have removed Mr. Dadi from within the MIG far sooner than they did.

Aviva argues that regardless of the question on the applicability of the MIG, Mr. Dadi still bears the additional burden of proving that the treatment plan was reasonable and necessary. Aviva argues that in this case, Mr. Dadi has failed to prove on a balance of probabilities that the treatment plan is reasonable and necessary - that there is no cogent evidence justifying that Mr. Dadi requires attendant care or occupational therapy, or an assessment of the need for same.

The Arbitrator disagreed, citing the medical evidence in Aviva’s possession which it clearly chose to ignore. The Arbitrator also noted that there were self serving actions taken by personas of authority in the case which constituted a breach of trust.

Aviva argues that the special award is not applicable in this case as an insurer is not held to the standard of perfection in responding to this claim.

The Arbitrator agreed with Aviva, and while incorrect decisions made by the adjuster and her supervisors, while misinterpreting the information may be borderline incompetence, it is not the type of wrong doing that rises to the level required for a special award. Therefore, Mr. Dadi is not entitled to a special award in this matter.

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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.