N. M. v. Aviva General Insurance, 2019 CanLII 18341

Licence Appeal Tribunal

Date: 2019-02-07

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:

N. M.

Appellant(s)

and

Aviva General Insurance

Respondent

DECISION

Adjudicator: Christopher A. Ferguson

Appearances:

For the Appellant: Olga Kanevsky, Paralegal
For the Respondent: Geoffrey L. Keating, Counsel

Heard In Writing: Hearing: May 22, 2018

OVERVIEW

1The applicant "N.M." was involved in a motor vehicle accident ("the accident") on September 14, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ ("the Schedule").

2N.M. applied to the Licence Appeal Tribunal (the "Tribunal") when his claims for benefits were denied by the respondent "Aviva".

ISSUES IN DISPUTE

3I must determine the following issues:

1. Is N.M. entitled to a medical and rehabilitation benefit in the amount of $2,661.57 for physiotherapy treatment recommended by East Sheppard Rehab in a treatment plan (OCF-18) submitted on July 21, 2017, and denied on July 26, 2017?
2. Is N.M. entitled to interest on any overdue payment of benefits?
3. Is Aviva liable to pay N.M. an award under Regulation 664, Automobile Insurance² ("Regulation 664") because it unreasonably withheld or delayed payments to him/her?

RESULT

4I find that N.M. has not met the onus on him to prove that the medical benefit he seeks is reasonable and necessary.

5Aviva is not liable to pay N.M. an award.

REASONS & ANALYSIS

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.³

7N.M.'s submissions provide no argument or analysis related to his medical evidence to guide me in assessing whether or not the medical benefit he claims is reasonable and necessary. His submissions include medical information that is not clearly related to or relevant to the accident.

8N.M. submits that "the Respondent has not met the standard of claim adjustment. As such, the applicant request [sic] that the Respondent approves the OCF-18 Treatment and Assessment Plan dated July 21, 2017."

9N.M.'s assertion that Aviva mismanaged his claim is based on a delay of seven months between the date of the OCF-18 and the insurer's examination (IE) conducted by Dr. Todd Walters, Family Medicine. N.M. also asserts that Dr. Walter's findings are undermined by this delay, since his medical condition had improved as a result of treatment; as a result, Dr. Walters could not have been able determine whether or not the OCF-18 was reasonable and necessary at the time it was submitted.

10Aviva contends that N.M. has simply failed to lead any evidence or argument to establish that the disputed treatment plan is reasonable and necessary and, therefore, his claim cannot succeed.

11In addition, Aviva relies on its insurer's examination (IE) report, dated February 14, 2018, by Dr. Todd Walters, Family Medicine, in which Dr. Walters concludes that the disputed treatment plan was not reasonable and necessary.

12In find that N.M. has failed to meet the onus on him to show that the disputed benefit was reasonable and necessary. My reasons are:

i. N.M. provides no medical basis for concluding that the claimed benefit is reasonable and necessary. His submission is silent on the medical reasons given by Aviva⁴ for denying his claim, which included concerns about frequency of care over time and over-emphasis on passive treatment without an active rehabilitative phase.

ii. N.M. provides me with no legal authority or precedent for allowing an appeal of a specific medical benefit on the basis of sub-standard claims adjustment. I do not believe that I have the authority to make such a decision.

iii. N.M.'s criticism of Dr. Walter's IE findings is irrelevant in the absence of positive evidence to support his claim. Weaknesses in an insurer's rebuttal to a claim do not prove the claim.

AWARD

13Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has "unreasonably" withheld or delayed payments.

14Because an award is premised on an amount to which the applicant is entitled, my finding that N.M. has failed to prove his entitlement to the claimed benefit renders his award application moot.

15I do note, however, that N.M. fails to reply to Aviva's account of why its IE was delayed. According to Aviva, the delay in scheduling the IE arose from N.M.'s delay in providing medical records necessary to proceed.

INTEREST

16Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

17The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due.

CONCLUSION

18N.M. has not met the onus on him to prove his entitlement to the disputed treatment plan.

19N.M.'s claim for an award is without merit and is dismissed.

20There are no payments owing to N.M. and therefore no interest due on overdue payments.

Footnotes

1. 1O. Reg. 34/10.
2. 2i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
3. 3Scarlett v. Belair, 2015 ONSC 3635
4. 4In its letter to him dated January 4, 2018.