Tribunal File Number: 17-005825/AABS
Case Name: 17-005825 v Aviva Canada Inc.
In the matter of an Application 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 Canada Inc.
Respondent
DECISION
ADJUDICATOR: Matthew M. Létourneau
APPEARANCES:
For the Applicant: Michael Yermus and Norma Barron, Counsel
For the Respondent: Aimee Draper, Counsel
HEARD IN WRITING: February 27, 2018
OVERVIEW
1The applicant was involved in an automobile accident on April 2, 2015. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O Reg. 34/10 (“Schedule”).
2The insurer refused to pay certain benefits requested by the applicant, including physiotherapy, massage therapy, psychological assessment and psychotherapy. Following these denials, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of these disputes.
3The applicant’s position is that the claimed benefits are reasonable and necessary. Further, the applicant claims interest, an award and costs due to the insurer’s behaviour in this matter.
4The insurer paid incurred amounts of several of the benefits claimed on the eve of making their submissions and argues that these payments should lead the applicant to withdraw its claims. The insurer also argues that the outstanding treatment plans at issue in this application are not reasonable and necessary and therefore not payable. The insurer submits that it does not owe an award for unreasonable delay.
ISSUES
5The issues in dispute in this written hearing are:
i. Is the applicant entitled to payment for the following OCF-18 Treatment and Assessment Plans (“Treatment Plans”), specifically:
a. Treatment plan of Dr. Manoharan, dated October 6, 2015 in the amount of $2,733.50 for physiotherapy and massage, denied on January 9, 2017;
b. Treatment plan of Dr. Pilowsky dated October 6, 2015 in the amount of $2,144.93 for psychological assessment, denied on January 9, 2018;
c. Treatment plan of Dr. Pilowsky dated October 26, 2015 in the amount of $2,830.26 for psychotherapy, denied on January 10, 2017;
d. Treatment plan of Dr. Pilowsky dated January 26, 2016 in the amount of $3,129.48 for psychotherapy, denied on January 9, 2017;
e. Treatment plan of Dr. Manoharan, dated October 19, 2016 in the amount of $2,365 for physiotherapy and massage, denied on January 9, 2017;
f. Treatment plan of Dr. Manoharan, dated March 20, 2017 in the amount of $1,804 for physiotherapy and massage, denied on March 21, 2017;
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award because the insurer unreasonably withheld or delayed payments of benefits to the applicant?
iv. Is the applicant entitled to costs in accordance with the Tribunal rules?
RESULT
6The applicant is entitled to all of the claimed benefits in her application.
7The applicant is entitled to interest on any amounts incurred to-date pursuant to section 51 of the Schedule.
8The applicant is entitled to a special award equal to 25% of the initial value of the applicant’s claim at the time of the application, owing as of November 18, 2017.
9The applicant is not entitled to costs.
FACTS
10The applicant was involved in an accident in Ontario on April 2, 2015 when a vehicle collided with her vehicle, striking the driver’s side.
11Following the accident, the applicant attended the emergency department at [a] Hospital on April 11, 2015.
12The applicant reported injuries arising from the accident to include exacerbated fibromyalgia, headaches, pain to the back, legs, knees, groin, shoulders and neck, tingling, numbness, anxiety, depression, sleeping difficulties and chronic pain.
13The applicant sought treatment and made various claims for medical benefits to the insurer.
ANALYSIS
Issue (i) – Is the Applicant entitled to the claimed medical benefits?
14The applicant claims several medical and rehabilitation benefits as well as the cost of examinations resulting from her accident.
15To succeed, the applicant’s evidence must demonstrate the claimed benefits to be reasonable and necessary. The parties agree that I am to consider the evidence and apply the Schedule in assessing entitlement to benefits.
16The applicant submits that her medical evidence substantiates the extent of her injuries and demonstrates that her claims for treatment under the Schedule are reasonable and necessary.
17The insurer finds the evidence of the applicant to be insufficient in substantiating the treatment to be reasonable and necessary. Despite this, the insurer paid several of the applicant’s claims. Specifically, the insurer paid $9,190.58 of incurred treatment plan amounts on or about February 14, 2018, as it was filing its written response submissions. The amounts paid by the insurer were applied to $12,612.13 in remaining incurred amounts from the initial claim total value of $15,047.17, as set out in the application.
18The insurer states the fact of paying the incurred amounts remaining regarding certain treatment plans at issue in this application render them moot and they should therefore be withdrawn by the applicant.
19I find that the fact of paying the incurred amounts does not render them moot. The applicant’s application to the Tribunal requires that I determine entitlement to the benefits as claimed in the treatment plans.
A. Are the claimed benefits reasonable and necessary?
20The applicant submits that psychotherapy, physiotherapy, chiropractic and massage treatment as well as prescribed medication are necessary in resolving what Dr. Zahavi, the applicant’s family doctor, has diagnosed as chronic pain syndrome, exacerbation of the applicant’s fibromyalgia as well as the psychological impairment as diagnosed by Dr. Pilowsky.
21On a balance of probabilities, the evidence shows that the claimed treatment plans are all necessary in continuing successful rehabilitation and pain relief to the benefit of the applicant.
22Prior to the accident, the applicant did not have significant health concerns. After the accident, Dr. Zahavi observed that the physiotherapy treatment was helping with the applicant’s pain, that the pain worsens when rehabilitation is stopped and that the counselling has helped overall and reduces the flashbacks.
23Notably, in a report dated May 14, 2017, Dr. Zahavi opined that the applicant suffered from chronic pain and worsening fibromyalgia as a result of the accident.
24Dr. Zahavi found that the applicant requires ongoing physiotherapy, including supervised exercise and stretching, as well as massage, TENS and ultrasound. This treatment will assist and help manage the chronic pain and other impairments experienced by the applicant.
25The applicant takes the position that the these findings and the goal of pain reduction show the physical treatment plans of October 6, 2015, October 19, 2016 and March 20, 2017 to be necessary.
26The Insurer Examination of Dr. Oshidari of January 5, 2017 also finds that further physical treatment is necessary to help manage pain, but that the applicant should pursue a self-directed exercise program. I find that this report does not contradict the necessity of the treatment plans at issue relating to the applicant’s physical impairments.
27Despite initials denials, the insurer paid the incurred amount of $2,585 for the treatment plan of October 6, 2015 (physiotherapy and massage) at the time of making its written submissions as well as the incurred amounts of $1,465 for the treatment plan of October 19, 2016 (physiotherapy and massage). I find these plans to be necessary for treatment of the applicant. I also find that the plan of March 20, 2017 to be necessary as it relates to the same treatment symptoms and goals as the previous two physical treatment plans. This finding is further based on the fact that the evidence shows that the applicant impairments are still present.
28Regarding the psychological assessment of October 6, 2015 and the psychotherapy of October 26, 2015 and January 26, 2016, these treatment plans are also necessary in the circumstances. A psychological re-assessment report of October 20, 2016 by Dr. Pilowsky noted that treatment has improved symptoms related to the diagnosis of PTSD, vehicular anxiety and severe, persistent, somatic symptom disorder with predominant pain with secondary depression. The applicant’s family doctor’s report of May 14, 2017 supported the psychological treatment plans, as the applicant suffered from variable mood swings and would benefit from treatment.
29The insurer denied the assessment of October 6, 2015 on the basis of Dr. Challis’s insurer’s examination finding that there was no psychological diagnosis or impairment.
30I find the applicant’s medical reports to be more persuasive given the consistency and detail in reporting on the applicant’s psychological impairments as well as their connection to mitigating the chronic pain impairment of the applicant.
31Further, despite the insurer’s initial denials, it paid for the psychological assessment of October 6, 2015 in full on the eve of its submissions. The insurer also paid the incurred amount of $2,810.65 with respect to the January 26, 2016 psychotherapy treatment.
32While the insurer did not pay for the October 26, 2015 treatment plan in the amount of $2,830.26, I find it to be necessary given my analysis above. In short, the psychological related treatment plans are all in line with the necessity of addressing symptoms experienced by the applicant due to the accident.
33I find all six of the claimed treatment plans, including the physical treatment plans, the psychotherapy and the psychological assessment, to be necessary.
34I must also determine whether the claimed benefits are reasonable. The applicant submits that the claimed benefits are reasonable in the circumstances. The insurer takes the opposing view in arguing that the applicant has reached maximal recovery, does not need further clinical treatment and that the treatment plans provide more than what is required to treat the applicant’s impairments.
35On a balance of probabilities, I find that the applicant’s claimed treatment plans are all reasonable.
36The evidence demonstrates that the physiotherapy was reducing pain and was successful in treating the applicant’s impairments. The evidence provided by the applicant supports this contention.
37Regarding the psychological assessment and psychotherapy treatment claimed and as stated above, Dr. Pilowsky’s psychological re-assessment report of October 20, 2016 and Dr. Zahavi’s report of May 14, 2017 demonstrate that the psychological treatment is reasonable as part of a complete rehabilitation program aimed at pain reduction and symptom management.
38Given my findings above as to the claimed benefits being reasonable and necessary, the applicant is entitled to each treatment plan claimed in her application, as identified at paragraph 5(i), above.
39I find that the applicant is entitled to each benefit claimed in her application given that the available evidence shows these treatment plans to be reasonable and necessary.
Issue (iv): Is the applicant entitled to interest for the overdue payment of benefits pursuant to section 51 of the Schedule?
40As I find that the applicant is entitled to the treatment plans claimed in this application, the applicant is entitled to interest for the overdue payment of any benefits pursuant to section 51 of the Schedule.
Issue (v): Is the applicant entitled to an award pursuant to s. 10 of Regulation 664 of the Insurance Act.
41The applicant submits that the insurer failed to approve the disputed treatment plans in a timely fashion and that the insurer caused delay which constitutes an unreasonably withheld payment contrary to s. 10 of Regulation 664 of the Insurance Act. If the applicant’s position is correct, I can order up to 50% of the amounts to which the applicant is entitled to, together with interest on all amounts owing (including unpaid interest) at a rate of 2% per month, compounded monthly, from the time the benefits became payable under the schedule.
42The insurer submits that I must evaluate whether all information available was considered in assessing the applicant’s claim, but not whether the insurer was initially wrong in its assessment. The insurer explained that it initially denied payment because of several months delay by the applicant in submitting an OCF-1 as well as the fact of there being about 16 months between the accident and the date of the application to the Tribunal. Once the OCF-1 was properly submitted, as well as further medicals and self-reports received, the insurer paid certain benefits and removed the applicant from the MIG by November 2017. The insurer then paid incurred amounts on or about February 14, 2018, being the due date of its written submissions, and therefore submits that it adjusted the file reasonably and without delay.
43First of all, I agree with both parties on the legal test to be applied in accordance with Regulation 664 of the Insurance Act and the case law cited by the parties regarding awards.
44I also agree that the delays up to November 8, 2017 were for legitimate reasons of having a late OCF-1, incomplete information and application to the Tribunal.
45The applicant submits however that there was sufficient information to award the claimed benefits earlier - and to avoid delays - being as early as July 26, 2016, with the submission of clinical notes and records, or by May 14, 2017 with Dr. Zahavi’s report, or at least by November 8, 2017 when further clinical notes and records and outstanding amounts were submitted.
46The basis of the insurer’s denials of benefits stem mainly from insurer examinations from December 2016. By May 2017, the insurer had additional information allowing it to assess the claim and award treatment.
47On November 8, 2017, the applicant provided the insurer with its Case Conference Summary and disclosure of documents, including clinical notes and records of Dr. Zahavi, Jacobs Pain Centre, [the] Hospital, [the] Physiotherapy and Rehabilitation Centre as well as an OHIP summary and an outstanding clinic balance.
48The insurer had ample opportunity to proceed with its decision to pay the remaining incurred amounts prior to receiving this information. At the very least, the insurer was in a position to confirm that it was revaluating its position upon receiving further information on November 8, 2017.
49I find that as of November 8, 2017, the insurer had all of the necessary documentation it could have required to approve the benefits claimed or maintain its denial. The insurer maintained its denial, only to approve the amounts noted above on or about February 14, 2018.
50Given this chronology, I conclude that the insurer revaluated and altered its position in a reasonable manner up to November 8, 2017. However, I find there to be unreasonable delay regarding all claimed treatment plans between November 8, 2017 and the insurer’s partial payment of remaining incurred amounts on or about February 14, 2018, concurrent with the submission of the insurer’s written submissions.
51I find the delay from November 8, 2017 to just after receiving the submissions of the applicant to have negatively impacted the applicant’s ability to have sought or negotiated further treatment during this time.
52The purpose of the Schedule is consumer protection and is designed to provide a means by which applicants can engage in a meaningful process to resolve disputes, including a claims process, mediation and ongoing negotiation up to and including arbitration.1
53Applicants will be wary of incurring too much treatment with the uncertainty of having it covered by insurance if an insurer is able to delay payment of incurred amounts past the date on which they ought to be paid. The insurer is in the position to bear the consequences of this delay, but the applicant usually is not. This delay allows the insurer to have the benefit of crystallized incurred amounts before deciding whether to pay and places a burden on the applicant to decide whether to increase the treatment amounts incurred. Also, delays of this kind can be perceived as an attempt to avoid paying interest on claims that will likely be awarded at the hearing. Denials of benefits under the Schedule must be for medical reasons and not for strategic or economic reasons.
54Whether intended or not, the insurer’s delay in this matter can only benefit itself, as it places undue financial pressure on the applicant to negotiate against herself and to carry the risk of large incurred amounts sought for reasonable treatment, all while adding the pressure of funding further legal proceedings.
55If this practice were encouraged, insurers would be tempted to pay incurred amounts to avoid paying interest on delayed payments and to dissuade applicants from proceeding to a hearing. These results are not in keeping with the purpose of the Schedule and ought to be discouraged.
56I find that that all benefits claimed in the applicant’s application became payable on November 18, 2017, being 10 days after any remaining information was provided on November 8, 2017. Therefore, an award will be granted to the applicant for 25% of the total value of the claimed benefits as of the date of the filing of this application, owing as of November 18, 2017.
57I find in this case, the amount of the award is reduced given several factors. In considering the factors to be considered in determining entitlement and amount of an award, the applicant directed me to several cases, including Rafat v Aviva Canada Inc.2 As in Rafat, I am not awarding a full award. I have considered the following factors:
a. The amount of withheld payments, which were unreasonable and onerous given that $12,612.13 was outstanding and carried by the applicant;
b. The time the benefits were withheld, while initially delayed for reasons not attributable to the insurer, became more egregious as time dragged on from July 26, 2016 to November 8, 2017 and finally to February 14, 2018, as discussed above;
c. Failure to respect the obligations under the Schedule to participate in the Tribunal process and to adjust their position in a fair and reasonable manner and in keeping with the purpose of the Schedule; and
d. The mitigating factors which include adjusting the file reasonably initially and also, having finally paid for $9,154.08 of the incurred amounts that were previously denied.
58A 50% award would require the most egregious behaviour, which was not demonstrated in this case, and is therefore reduced to 25%.
59The total value of the claimed benefits in the application totaled $15,007.17. The 25% award granted to the applicant will total $3,751.79, together with interest on all amounts owing (including unpaid interest) at a rate of 2% per month, compounded monthly, from November 18, 2017.
COSTS
60The applicant seeks costs pursuant to rule 19 of the Tribunal Rules of Practice and Procedure, Version 1 (the “Rules”). The applicant submits that the insurer’s handling of this matter has been unreasonable, high handed, unfair, deceptive and vexatious. This request was raised in the reply. While I do not have submissions from the insurer on the issues of costs, the basis for the claim mirrors the allegations made for the award and the insurer was able to comment specifically on the circumstances that would lead to a finding of costs.
61I may award costs where a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. To do so, I require evidence showing that a party to the proceedings has acted in such a way.
62The purpose of a cost award by the Tribunal is to maintain civility and order during proceedings, to deter conduct that threatens the orderly and civil resolution of an application, and to ensure that the Tribunal’s process and the other participants are respected. This is aimed at the behaviour by the parties (See e.g. 16-000449/AABS v State Farm Mutual Automobile Insurance Company, 2017 CanLII 62164 (ON LAT)).
63I do not have any evidence of any party acting in a manner that was unreasonable, frivolous, vexatious or in bad faith. While the insurer’s decisions may have led to the unreasonable withholding of a benefit, the record before me does not allow me to conclude in what manner the communications or the behaviour of the insurer were in arriving at its decisions. The applicant submits that I can make this finding given that the insurer did not show reasons for any unreasonable delays and that the adjuster log notes did not offer a reasonable explanation for the delay.
64To the contrary, I find that the lack of any evidence in the log notes or otherwise of specific behaviour by the insurer is fatal to the applicant’s claim for costs. It would not be appropriate to draw a negative inference here. The claim for costs is a serious claim against a party’s behaviour during the proceeding and I require clearer evidence to make such an award than what the applicant has pointed to in the circumstances in this matter.
65Therefore, the applicant is not entitled to costs.
CONCLUSION
66For the reasons above, I find that the applicant is entitled to the benefits claimed in her application, along with interest.
67The applicant is also entitled to an award equal to 25% of the initial value of the applicant’s claim at the time of the application, owing as of November 18, 2017.
68The applicant’s appeal is granted.
Released: August 21, 2018
Matthew M. Létourneau
Adjudicator
Footnotes
- See e.g. Smith v. Cooperators General Insurance Company, 2002 SCC 30.
- [2015] OFSCD No 143 [Rafat].