17-005692 v. Aviva Insurance Company of Canada, 2018 CanLII 83499

17-005692 v Aviva Insurance Company of Canada

Date: 2018-06-20

Tribunal File Number: 17-005692/AABS

Case Name: 17-005692 v Aviva Insurance Company of Canada

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

Counsel for the applicant: Maria Mikhailitchenko

Counsel for Aviva: Petros Yannakis

Heard in Writing: April 23, 2018

Overview

1The applicant was injured in a motor vehicle accident on August 28, 2015. She sought payment for a number of benefits under the Schedule¹. Aviva Insurance Company of Canada (“Aviva”)² denied payment for some of the benefits. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

Issues:

2The following issues are in dispute:

1. Is the applicant prevented by section 55 of the Schedule from bringing an application for income replacement benefits as a result of her failure to provide Aviva with particulars of her pre-accident or post-accident employment? If so, is the applicant entitled to receive a weekly income replacement benefit of $400.00 from December 2015 to the date of this hearing?

2. Is the applicant entitled to $3,643.76 for chiropractic treatment that was recommended by Alpha-Med Wellness Centre in a treatment plan that was denied on January 7, 2016?

3. Is the applicant entitled to $2,235.27 for psychological treatment that was recommended by Alpha-Med Wellness Centre in a treatment plan that was denied on March 1, 2016?

4. Is the applicant entitled to receive $3,627.38 for psychological treatment that was recommended by Alpha-Med Wellness Centre in a treatment plan that was denied on May 25, 2016?

5. Is the applicant entitled to $2,275.76 for chiropractic treatment that was recommended by Alpha-Med Wellness Centre in a treatment plan that was denied on June 20, 2016?

6. Is the applicant entitled to receive $6,807.48 for psychological treatment recommended by Royal Health Evaluations in a treatment plan that was denied on January 16, 2016?

7. Is the applicant entitled to $1,327.90 for a chiropractic assessment by Alpha-Med Wellness Centre that was denied on May 20, 2016?

8. Is the applicant entitled to interest on the overdue payment of benefits?

9. Is Aviva entitled to costs under Rule 19.1?

10. Is the applicant entitled to costs under Rule 19.1?

Result:

3The applicant is entitled to payment for two Treatment Plans for chiropractic services: $2,275.76 and $1,327.90 (issues 5 and 7) and interest in accordance with s. 51 of the Schedule. The applicant is not entitled to payment for any other benefit in dispute. Neither the applicant nor Aviva is entitled to costs under Rule 19.1

4Issue 1: The applicant is not entitled to payment for an income replacement benefit. Her failure to provide Aviva with an Employer’s Confirmation Form does not prevent her from bringing an application to the Tribunal for income replacement benefits. However, her failure to provide an Employer’s Confirmation Form disentitles her to payment for an income replacement benefit for the period that she is in non-compliance with s. 33 of the Schedule. Even if s. 33 did not apply, the applicant failed to prove that she was either employed at the time of the accident or for 26 weeks during the 52 week period before the accident.

5Issues 3 and 4: The applicant is not entitled to payment for the unapproved portions of these two Treatment Plans for psychological services because she has failed to prove that the fees are reasonable. Subsections 38(8) and (11) do not apply. The applicant failed to meet her onus of proving that the fees are reasonable.

6Issue 6: The applicant is not entitled to payment for this Treatment Plan, which is a Driver Reintegration Program. The applicant self-reported that she ceased driving due to the fact that she does not have a car and she was not experiencing any anxiety-related issues. Moreover, I prefer Aviva’s medical opinion on this issue over the applicant’s because there is real doubt about whether applicant’s medical opinion was provided by a psychologist.

7Issues 2, 5, 7, and 8: The applicant is entitled to payment for two Treatment Plans for chiropractic services (issues 5 and 7) and interest in accordance with s. 51 of the Schedule (issue 8). These two Treatment Plans are reasonable and necessary given that the applicant is allowed to choose the modalities of her rehabilitation in this instance. The portion of the third Treatment Plan in dispute (issue 2) is not payable because the applicant has not shown why it is reasonable and necessary.

8Issues 9 and 10: Neither Aviva nor the applicant is entitled to costs under Rule 19.1.

Discussion:

Issue 1: The applicant is not entitled to payment for an income replacement benefit

9The applicant’s failure to provide Aviva with confirmation of employment does not prevent her from bringing an application for income replacement benefits. However, the failure to provide confirmation of employment disentitles her to payment for an income replacement benefit for the period that she is in non-compliance with the Schedule. There is a difference between the ability to bring an application to the Tribunal and disentitlement to payment for a benefit.

10Aviva submitted that the applicant should be barred from bringing her application to the Tribunal at this time due to s. 55; and she should be disentitled to payment at this time due to s. 33. I will discuss each of these submissions in turn.

(1) The applicant is not prevented from bringing an application to the Tribunal

11Section 55(1) of the Schedule effectively requires the applicant to notify Aviva of the circumstances giving rise to her claim for an income replacement benefit. She cannot apply to the Tribunal for an income replacement benefit if she does not notify Aviva of the circumstances. In the context of this case, one of the necessary circumstances is that the applicant was employed during at least one of two time periods:

1. At the time of the accident³

2. At least 26 weeks during the 52 weeks before the accident⁴

12An insured person generally avoids the punishment of s. 55(1) by providing his or her insurance company with a standard form called an “Employer’s Confirmation Form” (OCF-2). The applicant has not provided Aviva with an Employer’s Confirmation Form or a document with the same quality of information. She has provided some paystubs, none of which directly show that she was employed at the time of the accident, and the combination of which fail to show that she was employed for 26 weeks during the 52 week period before the accident. Aviva submits the applicant’s failure to provide an Employer’s Confirmation Form prevents her from applying to the Tribunal under s. 55(1).

13The question to be asked is whether the paystubs provide enough information for Aviva to understand that the applicant may be entitled to an income replacement benefit. The paystubs do provide enough information. The applicant is not prevented under s. 55(1) from bringing an application to the Tribunal.

14Section 55(1) should be read in a manner that does not prevent an insured person from exercising their right to dispute resolution unless they have fundamentally deprived their insurer with a means of assessing the circumstances that gave rise to their benefit claim. Preventing an insured person from applying to the Tribunal for dispute resolution is an extreme remedy under the Schedule. Unlike any other provision in the Schedule, s. 55 denies a substantive and procedural right to the insured person. The insured person is denied the substantive right of obtaining payment for a benefit until he or she complies with the section. Moreover, unlike other provisions in the Schedule, there is no opportunity for the insured person to provide a reasonable explanation to remedy the denial of his or her substantive right during the period of non-compliance.⁵ The insured person is also denied the procedural right of applying to the Tribunal for determination of whether they are entitled to payment for the benefit. This is a significant denial of a procedural right. Not only is the insured person prevented from obtaining payment for a benefit, she or he is prevented from even applying for a determination of whether she or he is entitled to payment.

(2) The applicant is not entitled to payment for an income replacement benefit during the period in which she fails to comply with s. 33 of the Schedule

15The paystubs in this case are a far less reliable confirmation of employment than an Employer’s Confirmation Form. Under s. 33(1) of the Schedule, upon receiving appropriate notice from Aviva the applicant is required to provide any information reasonably required to assist in determining her entitlement to an income replacement benefit. An Employer’s Confirmation Form is “information reasonably required to assist” within the meaning of s. 33(1). Under the law, Aviva is not required to pay for an income replacement benefit during any time period in which the applicant does not comply with s. 33(1).⁶ There is an exception if the applicant provides a reasonable explanation for the time period in which she failed to comply with s. 33(1).

16There is no dispute that Aviva requested an Employer’s Confirmation Form from the applicant in the past. The dispute is whether the applicant has a reasonable explanation for her failure to provide an Employer’s Confirmation Form. The applicant’s explanation is that at the time of the accident she was employed at a bread factory through an agency. Due to the tenuous nature of her employment and the severity of her injury, the only confirmation of employment that she was able to obtain were some paystubs.

17I do not accept that the applicant’s explanation is reasonable. There is no evidence that the applicant made efforts prior to this hearing to obtain an Employer’s Confirmation Form. The only indication of prior effort is the applicant’s submissions in this hearing, which of course are not evidence. In order to accept the applicant’s explanation as reasonable, I would prefer to see past efforts to obtain the Employer’s Confirmation Form.

18The situation is much like that in F.F. v. Aviva Canada, 2017 CanLII 77381. In this reconsideration decision from the Executive Chair, the insured person’s ‘reasonable explanation’ for failing to comply with s. 33(1) was that “he required additional time to obtain information about his business and is elderly.”⁷ The Executive Chair declined to accept this explanation as reasonable because there was no evidentiary basis for the claim.

19Aviva is not required to pay the applicant for an income replacement benefit unless and until the applicant complies with s. 33(1).

(3) The applicant failed to prove her entitlement for an income replacement benefit

20Even if s. 33 did not apply, the applicant is not entitled to an income replacement benefit because she has failed to prove her entitlement. Section 5(1) of the Schedule requires the applicant to prove that either she was employed at the time of the accident or at least 26 weeks during the 52 weeks before the accident. The paystubs do not indicate that the applicant was employed at the time of the accident. Moreover, this is not enough paystubs to prove on a balance of probabilities that the applicant was employed for 26 weeks during the 52 weeks before the accident.

Issue 3 and 4: The applicant is not entitled to payment for psychological treatment

21There are two Treatment Plans for psychological service in dispute. The first is a Treatment Plan dated January 19, 2016 for a psychological assessment (issue 3). The Treatment Plan requested payment of $2,235.72 and Aviva partially approved $1,247.27. The second is a Treatment Plan dated May 3, 2016 for psychological treatment. The Treatment Plan requested payment of $3,627.38 and Aviva partially approved $1,966.32. The applicant seeks payment of the unapproved portions of each treatment plan.

22The applicant is not entitled to payment for the unapproved portions because she has failed to prove that the fees are reasonable. The onus is on the applicant to prove on a balance of probabilities that the unapproved portion is reasonable and necessary.⁸ The applicant provides two sets of submissions, neither of which directly address this issue.

23First, the applicant submits that Aviva should pay for the unapproved portions of the Treatment Plans because it did not provide a line-by-line explanation of why it approved some aspects of each plan and not others. I presume the applicant is attempting to invoke ss. 38(8) and (11), which could require Aviva to pay for the unapproved portions of the Treatment Plans. These subsections apply when an insurance company fails to provide ‘medical and all other reasons’ why it considers any goods and services to not be reasonable and necessary. Even assuming that Aviva is required to provide a line-by-line explanation of why it approved some aspects of the plan and not others, I find that Aviva did provide sufficient notice to the applicant why each good or service was not considered reasonable and necessary. Subsections 38(8) and (11) are not invoked.

24For the first Treatment Plan (issue 3), the applicant was provided with an Explanation of Benefits that included Dr. Rakesh Ratti’s psychological report, dated April 4, 2016. Dr. Ratti is a psychologist hired by Aviva to review the applicant in relation to the Treatment Plan. At page 9 of the report, Dr. Ratti explained that the total cost of the Treatment Plan is excessive. Dr. Ratti recommended fewer hours of treatment and lower administrative costs. Dr. Ratti’s explanation at page 9 amounts to, essentially a line-by-line explanation for why the unapproved goods and services within the Treatment Plan were not considered reasonable and necessary.

25The same can be said for the second Treatment Plan (issue 4). The Explanation of Benefits included another report from Dr. Ratti, dated June 8, 2016. This report was created in relation to the second Treatment Plan. At pages 3 and 4 of the report, Dr. Ratti provided in paragraph form a line-by-line explanation for why the unapproved goods and services within the Treatment Plan were not considered reasonable and necessary. It bears mentioning that the Treatment Plan recommended 10 1.5-hour counselling sessions. Dr. Ratti recommended 10 1-hour counselling sessions. The sign-in sheet for the psychological treatment shows that 8 of the 10 treatment sessions lasted exactly 1 hour, rather than the 1.5 hours requested in the Treatment Plan.

26Second, the applicant submits that the unapproved portions of the Treatment Plans are reasonable and necessary because she “was not able to return to work nor afford out of pocket treatment of her injuries or psychological issues.” In Reply, the applicant recalibrated this submission to say that Aviva has failed to prove that the charged fees were unreasonable. I am not persuaded by this submission because, at a hearing, the insurance company does not need to prove that a disputed expense is unreasonable. The applicant must prove that the disputed expense is reasonable on a balance of probabilities.

27I have reviewed the evidence regarding the applicant’s medical condition to determine whether the unapproved portions of the Treatment Plan are reasonable and necessary. The applicant suffers from Adjustment Disorder with Mixed Anxiety and Depressed Mood. Her treatment was removed from the Minor Injury Guideline because of her psychological condition.

28Looking at the applicant’s psychological condition, I am unable to infer on a balance of probabilities that the unapproved portions of the Treatment Plans are reasonable and necessary. At the least, I require submissions to guide me through links between the reasonableness of the unapproved portions and the applicant’s psychological treatment.

29Much discussion was had between the parties about whether the applicant’s treating practitioner was attempting to charge the correct rate of pay. Given my decision, I do not need to enter this discussion.

Issue 6: The applicant is not entitled to payment for a Driver Reintegration Program

30The $6,807.48 Treatment Plan in dispute is for the cost of a Driver Reintegration Program. The applicant is required to prove that the cost of this program is reasonable and necessary.

31I am not convinced on a balance of probabilities that the cost is reasonable and necessary. There are two reasons. First, the Driver Reintegration Program was recommended on the basis of an assessment conducted by Ms. Vera Sukhoveyeva under the supervision of Harsha Raghuraman, a psychologist. Ms. Sukhoveyeva diagnosed the applicant with a specific phobia. The applicant told Ms. Sukhoveyeva that she was not experiencing any anxiety-related issues. Indeed, the applicant told Ms. Sukhoveyeva that her driving ceased due to the fact that she does not have a car.

32Second, the applicant was assessed by Dr. Ratti in relation to the need for further psychological treatment. In reports dated October 13, 2016 and January 12, 2017, Dr. Ratti concluded that the applicant did not suffer from a specific phobia. Rather, Dr. Ratti diagnosed the applicant with only mild to moderate passenger anxiety.

33I prefer Dr. Ratti’s reports over Ms. Sukhoveyeva’s. Ms. Sukhoveyeva is not a psychologist; rather, she is said to have worked under the supervision of one, Harsha Raghuraman. Yet there is no mention in Ms. Sukhoveyeva’s report or clinical notes of Harsha Raghuraman’s participation in the assessment. I do not know to what extent Ms. Sukhoveyeva’s psychological opinion is the product of Harsha Raghuraman’s supervision. I am left with an apprehension that Ms. Sukhoveyeva’s psychological opinion was in no way formed by an actual psychologist. By contrast, there is no dispute that Dr. Ratti is a psychologist. Furthermore, Dr. Ratti’s reports conform to the applicant’s self-reports about why she does not drive; whereas Ms. Sukhoveyeva’s report does the opposite.

Issues 2, 5, and 7: The applicant is entitled to payment for 2 chiropractic Treatment Plans

34The applicant is entitled to payment for two of the three disputed chiropractic Treatment Plans. Two of the Treatment Plans are reasonable and necessary given that the applicant is allowed to choose the modalities of her rehabilitation in this instance. The outstanding portion of the third Treatment Plan is not payable because the applicant has not shown why it is reasonable and necessary.

35I begin with the Treatment Plan for which the applicant is not entitled to payment. This $3,643.76 Treatment Plan (issue 2) was initially denied by Aviva because the applicant’s treatment was governed by the Minor Injury Guideline. The Treatment Plan was partially approved after the applicant’s treatment was removed from the Minor Injury Guideline for psychological reasons. The partial approval was based on a perceived need for the treatment to focus on improving the ankle range of motion, proprioception and eversion strength, requiring 6 weeks of bi-weekly treatments, at a cost of $1353.72. The applicant has not provided a cogent submission on why the unapproved portion of the Treatment Plan is reasonable and necessary.

36The other two Treatment Plans (issues 5 and 7) were denied because the 6-week program described above was deemed to be sufficient to implement an exercise program. The applicant was recommended to continue with the exercises independently at home, without the need for facility-based supervision. I underscore here that the applicant’s need for treatment is not disputed: the modality of treatment is the sticking point.

37The applicant is entitled in this instance to choose the modalities of her rehabilitation. She told Dr. Geroge Charlambous that she experiences relief through chiropractic and massage therapy. Dr. Charlambous is a chiropractor who conducted a Functional Abilities Evaluation on the applicant. Although it is more cost-effective for the applicant to undertake home-based rehabilitation without the need for facility-based supervision, it is reasonable that the applicant choose facility-based treatment if she responds well to it. Given the applicant’s comment to Dr. Charlambous, it is clear that she prefers this modality over home-based rehabilitation. The preference is reasonable in the circumstance. The applicant is entitled to both of the Treatment Plans (issues 5 and 7).

Issue 8: The applicant is entitled to interest

38The applicant is entitled to interest in accordance with s. 51 of the Schedule on the outstanding payments of $2275.76 (issue 5) and $1327.90 (issue 7).

Issue 9: Aviva is not entitled to costs

39Aviva claims for costs in the final sentence of its submissions. Aviva does not specify what conduct is deserving of a costs Order or how that conduct fits within Rule 19.1 of the LAT Rules. Aviva’s costs claim is baseless and is dismissed.

Issue 10: The applicant is not entitled to costs

40The applicant claims for costs under Rule 19.1 of the LAT Rules. There are 3 reasons for the applicant’s claim:

1. Aviva did not provide reasons for the denial or partial approval of a number of benefits

2. Aviva made an unidentified payment to the applicant without providing supporting documentation when a dispute was already in progress

3. Aviva brought urgent motions for extension of deadlines while in possession for all relevant documents.

41Rule 19.1 allows the Tribunal to order costs where a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. The first reason for the applicant’s claim falls outside of the scope of Rule 19.1. Aviva’s alleged failure to provide reasons occurred prior to the commencement of dispute resolution at the Tribunal.

42The second reason for the applicant’s claim relates to a $474.60 cheque sent by Aviva on February 9, 2018 directly to the applicant. Aviva did not send an Explanation of Benefits with the cheque. The applicant’s counsel inquired with Aviva, who advised through email on February 20, 2018 that the cheque was payment for approved treatment for psychological services.

43I appreciate that the applicant was confused by the direct receipt of a cheque without an Explanation of Benefits. This does not rise to the level of unreasonable conduct required for a costs order under Rule 19. In my view, Aviva’s conduct was a less-than-professional clerical mistake.

44The cost claim could be dismissed on another basis. The applicant raised all of her costs claims in her Reply submissions, after she was put on notice that Aviva was seeking costs. The applicant’s initial submissions were provided to the Tribunal on March 2, 2018. This is after the applicant received the cheque and after her counsel received an informal explanation from Aviva. The applicant should have requested costs on this basis in her initial submissions. Raising it in Reply is not a proper use of Reply submissions. Aviva was not provided with an opportunity to defend itself against this reason for costs.

45The third reason for the applicant’s claim relates to two motions brought by Aviva for an extension of time to file its submissions because, allegedly, the applicant did not provide her submissions in a timely fashion. The first motion was brought on March 6, 2018 and granted on March 7, 2018. A second motion was brought for a further extension but was withdrawn when the applicant was able to prove that the material was mailed to Aviva’s address.

46Again, this is a less-than-professional clerical mistake that does not rise to the level of unreasonable conduct required for a Rule 19 costs order. I appreciate that the applicant and her counsel were insulted and frustrated by the suggestion that they did not provide their material on time. Insult and frustration is only quantified in a Rule 19 costs order if the conduct generating those feelings is unreasonable. Aviva’s conduct does not rise to that level.

Conclusion:

47The applicant is entitled to payment for two Treatment Plans for chiropractic services: $2,275.76 and $1,327.90 (issues 5 and 7) and interest in accordance with s. 51 of the Schedule.

48The applicant is not entitled to payment for any other benefit in dispute.

49Neither the applicant nor Aviva is entitled to costs under Rule 19.1.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010
2. 2Formerly RBC Insurance
3. 3Section 5(1)1(i) of the Schedule.
4. 4Section 5(1)1(ii)(A) of the Schedule.
5. 5See e.g. ss. 33(1) and (6) of the Schedule.
6. 6Section 33(6) of the Schedule. Note that there are some exceptions under ss. (7), but none apply here.
7. 7Para. 23
8. 8Scarlett v. Belair Insurance, 2015 ONSC 3635