Surveillance Evidence Excluded as It Is Submitted Late and Contrary to Adjudicator Orders - TT and Aviva LAT 17-002535

March 29, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

TT and Aviva LAT 17-002535, 2018 CanLII 8076

Date: of Decision: January 28, 2018
Heard Before: Adjudicator: Avvy Go

ENTITLEMENT TO BENEFITS: insurer submits surveillance video late and contrary to ruling by Adjudicators that no more evidence is to be submitted; applicant states evaluations were not accurate as interpreter services were not provided; adjudicator takes language barrier into account when evaluating assessments.

TT was injured in a car accident on February 17, 2015 and applied to Aviva for benefits pursuant to the SABs. When the parties were unable to agree on benefits TT applied to the Lat for arbitration.

Several case conference hearings were held to determine the issues in dispute and to address the disclosure of documents and records by the parties. Aviva submitted a surveillance CD along with its written submissions. TT then brought a motion to exclude the surveillance CD submitted by Aviva, with costs, on the basis that Aviva has acted in bad faith.

Issues:

1. The procedural issue in this case is whether the surveillance CD submitted by Aviva should be excluded.

The substantive issues in dispute are:

1. Is TT entitled to receive a medical benefit of $1,320.00 for physical rehabilitation services recommended in a treatment plan submitted on May 13, 2015?
2. Is TT entitled to receive a medical benefit of $2,600.00 for physical rehabilitation services recommended in a treatment plan submitted on July 14, 2015?
3. Is TT entitled to receive a medical benefit of $2,600.00 for physical rehabilitation services recommended in a treatment plan submitted on December 2, 2015?
4. Is TT entitled to receive a medical benefit of $2,000.00 for physical rehabilitation services recommended in a treatment plan submitted on October 20, 2016?
5. Is TT entitled to receive a medical benefit of $70.00 for completion of a Disability Certificate assessment in a treatment plan submitted on February 26, 2015?
6. Is TT entitled to receive payment of $2000.00 for a social work assessment recommended in a treatment plan submitted on June 3, 2015?
7. Is TT entitled to receive payment of $2000.00 for an orthopaedic assessment recommended in a treatment plan submitted on December 2, 2015?
8. Is TT entitled to receive a medical benefit of $200.00 for completion of a Disability Certificate assessment in a treatment plan submitted on June 3, 2016?
9. Is TT entitled to receive travel expenses of $1,400.00 submitted on July 15, 2015?
10. Is TT entitled to interest for the overdue payment of benefits?

RESULT

1. The motion by TT to exclude the surveillance CD is granted and the Adjudicator orders Aviva to pay costs of $300.00. TT is not entitled to the benefits claimed in items 1-10 above, and that no interest is payable.

A number of case conference hearings were held by the Tribunal prior to this written hearing. At the July 11, 2017 case conference, the parties advised the Tribunal of the evidence that they would be relying on at the hearing. For Aviva, the following evidence was noted:

•        Reports of Dr. BT, orthopaedic surgeon;
•        Report of Dr. RR, psychologist; and
•        Report of JG, Chiropractor

A further case conference was held on July 31, 2017 to resolve additional disagreements about disclosure. Aviva, once again, confirmed that the evidence it would be rely on were the reports from the three assessors as noted above. The case conference Adjudicator issued a second order dated July 31, 2017 confirming the parties’ agreement with respect to the evidence. In that order, Adjudicator Bass specifically ordered as follows:

No additional documents or records may be filed in the appeal without the permission of the Tribunal.

Finally, an order dated September 18, 2017 was issued by Adjudicator Johal, ordering Aviva to produce the adjustor’s log notes and serve them on TT by September 18, 2017. This order was made because Aviva had not submitted the adjustor’s log notes as previously ordered by Adjudicator Bass. As Adjudicator Johal explained, the order for Aviva to produce log notes was made “in the interest of fairness, efficiency and to ensure a just and timely resolution of the matters in dispute.” Adjudicator Johal also ordered TT to file his submissions by September 22, 2017 and Aviva to file its written response by October 6, 2017. Adjudicator Johal’s order also made clear that “all remaining terms of the order issued on July 31, 2017 remain in full force and effect”.

On October 6, 2017, Aviva served its responding submissions, in the form of two CDs, on applicant’s counsel. However, in direct contravention of the orders of Adjudicators Bass and Johal, one of the CD’s contained surveillance footage of TT conducted by Aviva. Due to scheduling issues and the fact that October 9, 2017 was a statutory holiday, TT’s counsel was unable to review the CDs until October 10, 2017. Upon review of the CDs, counsel for TT realized that surveillance was conducted of her client on September 22, 23, and 24, 2017 by Aviva, and one of the CDs was the recording of the surveillance.

TT then brought a motion to “strike the surveillance material from Aviva’s submission with costs.” In the alternative, should the Tribunal admit the surveillance production, TT asked for “sufficient time to review the surveillance material with counsel and challenge the surveillance should it seem fit and appropriate.”

TT opposed the admission of the surveillance CD on several grounds, including the fact that it was provided less than 10 days prior to the hearing, contrary to Rule 9.2 of the Tribunal Rules which requires parties to disclose the existence of every document at least 10 days before the hearing. TT also submitted that he was not given sufficient time to review the surveillance CD since it was submitted just prior to the Thanksgiving weekend and the fact that TT and his counsel work and live in different cities. As a result, TT did not actually get to view the CD until he could arrange to meet with counsel on the following week. More fundamentally, TT submitted that he has been prejudiced and denied procedural fairness and that Aviva was acting in bad faith by serving TT with the surveillance production after the case conference and after TT has filed his submission with the Tribunal.

Aviva did not address all of the issues raised by TT, nor did it provide any explanation why it had conducted this surveillance after the case conference. Most importantly, Aviva has not explained how the evidence is relevant to the issues in dispute.

The Adjudicator noted that while evidence that is relevant should not be excluded, and any prejudice or disadvantage to the other party for including the evidence is remedied by allowing time to review and respond and, if appropriate, with costs. There is a broader policy consideration as to why the surveillance evidence should be excluded in this particular case.

Aviva submits that what they did was in compliance with the Common Rules of Practice and Procedures (the Rules) of the Tribunal despite acting contrary to the order made by Adjudicator Bass. Adjudicator Go took the view that the Rules of the Tribunal are designed to ensure fairness to the parties in the process. They set the minimum standard by which the parties should conduct themselves. The Rules must be read, not in isolation, but in conjunction with any specific order made by the Tribunal on a case by case basis. In this case, there was a specific order made by Adjudicator Bass requiring the parties to seek permission before filing any additional documents and records, an order that Aviva had clearly failed to comply with. It is therefore not sufficient for Aviva to simply state they have complied with Rule 9.2 of the Tribunal without providing an explanation for its failure to comply with the Tribunal order. To allow the surveillance CD to be admitted under these circumstances is to condone Aviva’s disregard for the order issued by the Tribunal.

TT submitted that Aviva has acted in bad faith and asked for costs. Rule 19.5 of the Rules of the Tribunal gives the Tribunal broad power to decide whether to order costs and the amount of costs to be ordered.

Applying the Rule to this case, because Aviva has disobeyed the order of this Tribunal without offering any explanation for doing so, Aviva should not be allowed to benefit from the fruits of its behaviour. Adjudicator Go found that Aviva’s behaviour undermine the ability of the Tribunal to conduct its proceedings and therefore excluded the surveillance CD, with costs.

Substantive Issues: Is TT entitled to the medical benefits and payments sought?

The Schedule provides that an insurer is liable to pay medical and rehabilitation benefits for an insured person who sustains an impairment as a result of an accident where the claims are reasonable and necessary medical expenses incurred by the insured person as a result of the accident. The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.

Interpretation Issue: did TT’s limited ability to speak English prevent him from participating effectively in medical assessments without the aid of an interpreter?

TT submitted that, despite his requests, he was not provided with an interpreter for any of the three assessments conducted by the medical assessors retained by the insurer. TT submitted that the assessor should have notified the insurer that its report may be prejudiced, and the insurer should have rescheduled the assessment.  Aviva, on the other hand, submitted that TT did not ask for an interpreter before meeting with one physician, and also pointed out that at no time upon receipt of the assessment reports did either TT or his counsel objected to any of the reports on the ground of the lack of an interpreter. TT also never stopped any of the assessments on account of a language issue.

While there is nothing in the Schedule that requires an insurer to provide interpretation services to claimants who do not speak English or French as their first language, the issue of access to interpretation is an important one, particularly in the context of assessments, as they form the basis for an insurer to determine the benefit entitlement of an insured person. If an insured person cannot effectively communicate with the assessor, it will affect the quality and reliability of the assessment, which will in turn call into question the legitimacy of the opinion of the assessor.

The Adjudicator found there is conflicting evidence as to whether TT was unable to participate effectively in the assessment due to the lack of interpretation services. As Aviva has pointed out, in his Application for Accident Benefits dated February 24, 2015, TT chose “English” as the language spoken. On the other hand, the Adjudicator noted that in TT’s application to the Tribunal, he marked down “yes” to the question of whether he or any witnesses require language interpretation services. However, TT did not specify the language required.

The Adjudicator also noted Dr. RR observed the following about TT’s English speaking capacity on the first page of his report:

The claimant’s command of English was limited; it was adequate for the clinic interview (with frequent rephrasing) and simpler testing measures but not for the more complex testing.

 From his passage that TT’s English was limited. In fact, it was so limited that Dr. RR was unable to complete some of his test for TT. Yet the doctor who examined TT before the interpreter arrived noted in his report that “the claimant was able to communicate in English during his interview and during examination and there was no language barrier during the entire process.”

The Adjudicator noted that it may be difficult for people who do not speak English as their first language to convey their lack of understanding of the language. As such, TT is not at fault for not raising the issue during these assessments. And by the same token, his failure to raise the issue may have led the other party to believe that TT has understood everything said during the examination.

The Adjudicator noted that based on the evidence before TT does have limited English capacity. That said, he did participate in the assessments arranged by the insurer without any aid from an interpreter. This is taken into account in the Adjudicators evaluations of all three assessment reports of TT’s claims.

Another preliminary issue raised by TT is with respect to the Statement of Benefits. TT noted that in the Statement of Benefits, Aviva notified him that he would be eligible up to the policy limit of $50,000.00, without ever mentioning that his claim was considered to fall within the Minor Injury Guidelines (MIG). TT complained that Aviva failed to use the standard statements that all insurers rely on to advise the insured about their benefits entitlement. In reply, Aviva submitted that the contents of the letter must be read together with the Explanation of Benefits that were sent to TT and his counsel each time a Treatment and Assessment Plan was addressed. In each instance, Aviva specified that the MIG applied and that no expenses incurred on behalf of the said treatment plans would be paid.

The Adjudicator reviewed all the correspondence from Aviva to TT relating to the benefits claimed. Aviva’s Statement of Benefits dated March 17, 2015 would appear to suggest that Aviva was applying the $50,000 policy limit to TT’s claim. The Statement listed the total amount paid since the accident and since the last statement and the amount remaining in the policy, based on the $50,000 limit. However, as Aviva has also pointed out, in each of the letters denying TT’s benefits, Aviva did provide a list of explanations, including that TT has not provided compelling evidence to show that his injuries do not fall within the MIG. The Adjudicator agreed with Aviva that even if TT were to have understood that he was entitled to up to $50,000.00 in medical benefits, such an entitlement is not automatic.  Each of the treatment plans must be proven to be reasonable and necessary.

Do TT’s injuries fall within the MIG?

Aviva’s main reason for denying the benefits claimed by TT is based on its assessment that TT’s injuries fall within the MIG. The Adjudicator reviewed the Schedule and the MIG, and the law.

TT submitted that he is outside of the MIG because of pre-existing back pain which predates the accident and has been aggravated by the accident. TT also submitted that he has moderate degenerative disc changes and lumbar scoliosis to the left, as indicated by an x-ray result of May 2010. TT submitted that he continues to have residual impairments and restricted range of motion as a result of the accident. The Adjudicator found that TT has failed, on a balance of probabilities, to provide compelling evidence that he suffers from a pre-existing condition which would prevent him from achieving maximal recovery if benefits are limited to the MIG cap.

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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.