WLL vs. Aviva Insurance Company, 2019 CanLII 34611
Amendment Date: March 29, 2019
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:
WLL
Appellant
and
Aviva Insurance Company
Respondent
AMENDED DECISION
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
Sereena Samra
For the Respondent:
Alexander Hartwig
HEARD:
In Writing on: November 13, 2018
OVERVIEW
1The applicant, “WLL,” was struck by a motor vehicle as a pedestrian while crossing the street on February 16, 2015. As a result, WLL sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Aviva, denied her claim.
ISSUES
2The issues in dispute are:
Is WLL entitled to receive an income replacement benefit (IRB) from February 23, 2015 to January 1, 2017, and if so, in what amount?
Is WLL entitled to a cost of examinations in the amount of $1,458.72 for a Functional Abilities Examination (FAE) recommended by Perfect Physiotherapy and Rehabilitation in a treatment plan (OCF-18) submitted on June 2, 2016, and denied on July 6, 2016?
Is the applicant entitled to a medical benefit in the amount of $1,946.50 for physiotherapy treatment recommended by Perfect Physiotherapy and Rehabilitation in an OCF-18 submitted on June 2, 2016, and denied on June 22, 2016?
Is Aviva liable to pay an award under Regulation 664, Automobile Insurance2 (“Regulation 664”) because it unreasonably withheld or delayed payments to WLL?
Is WLL entitled to interest on any overdue payment of benefits?
RESULT
3WLL is not entitled to any of the benefits she claims from Aviva .Her appeal is denied; accordingly no interest is owing to her and there is no basis for an award.
REASONS
Issue 1: IRB
4The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.
5Before the accident, WLL claims to have been employed as a full-time manager’s assistant in a small business corporation (“LGI”).
6In submissions, Aviva admits that WLL “met the prescribed medical eligibility criteria, or "substantial inability" test, for the period in dispute; “only the amount of the benefit and whether section 33 of the Schedule has been complied with are at issue.” The evidence indicates that this position was communicated to WLL before her appeal.
Is WLL disentitled to collect IRBs because she failed to comply with s. 33 of the Schedule?
7Under s. 33(1)1 of the Schedule, an insured person must provide on request any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The time period for complying is 10 business days.
8The insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information: s. 33(6). If the applicant eventually complies with the insurer’s request, with a reasonable explanation for the delay, the insurer must pay the withheld benefit: s. 33(8).
9WLL argues that she made “best efforts” to comply with the request from Aviva and its accounting service provider, BDO Canada LLP, Chartered Accountants (“BDO”), with prompt responses to their request. She submits that she and her employer provided them with:
i. LGI’s company bank records showing the amounts paid to WLL with the deposit dates over the duration of her employment with them;
ii. WLL’s T4 from LGI and her Revenue Canada Notice of Assessment (NOA) for the tax year 2014;
iii. Employer’s Confirmation Form (OCF-2) dated August 15, 2015, which corrected an earlier OCF-2.
10WLL asserts that Aviva and BDO had all of the information reasonably required to calculate her IRB entitlement. Their request for information about the corporation’s tax filings was “unreasonable” [emphasis WLL’s] because:
iv. The corporate financial information was not within WLL’s power or control to produce; and
v. The additional information was not needed to calculate WLL’s IRB entitlement. The information provided by WLL confirmed that she was an employee and confirmed the amount of her monthly compensation, which was the same throughout her employment. “Calculating [WLL’s] benefit should have been a matter of simple arithmetic.”
11Aviva argues that the information it requested under s. 33 was reasonably required based on the following evidence:
vi. According to WLL’s application for benefits (OCF-1) dated March 4, 2015 and her OCF-2 dated July 12, 2015, she was a "manager assistant" with LGI from April 1 to December 31, 2014, and therefore was unemployed on the date of the accident. Despite claiming to be a "manager assistant" of the company, she also wrote her own name under “employer name” on her OCF-2. The address provided for LGI is also identical to her home address.
vii. In her Statutory Declaration dated March 31, 2015, WLL claimed to be the sole employee of her own business, having been self-employed for one and a half years (i.e. before April 2014). She claimed to take a monthly salary of $2,000.00. She also claimed to have worked up until February 16, 2015 and therefore would still have been self-employed on the date of loss. Lastly, she advised that her business had continued and that she could "do most of the office work at reduced workload and work time", therefore admitting that she continued to work and presumably earned post-accident income.
viii. WLL later submitted a document showing an allotment of shares, which implied she was one of four directors of the corporation. The document is dated February 28, 2014, which pre-dates when WLL allegedly began "employment' with LGI.
ix. No return to work date has ever been confirmed.
x. During its attempt to calculate WLL’s IRB, BDO noted cheques dated in October, November and December 2014 were deposited in March and April 2015, which it remarked as “unusual”. BDO reported to Aviva that it had insufficient information to calculate WLL’s pre-accident income and no information at all with which to determine post-accident income.
12Addressing WLL’s documentation, Aviva notes – and is not contradicted by WLL – that:
xi. WLL’s NOA and T4 statement for 2014 suggest $18,000 in employment income, but it is unclear during what periods of the year this was earned, and there is no mention of any business income earned as a director and/or self-employed person pre-accident.
xii. The summary of paycheques from LGI (i.e. a spreadsheet created by what may be WLL’s own company, in lieu of actual cheques or paystubs) shows eight cheques in the amount of $1,675.34 each, totalling $13,402.72, which is less than the $18,000.00 she earned according to her income tax documents or the $2,000 of monthly income that she claimed in her Statutory Declaration.
13Aviva’s above-described evidence, it argues, shows that WLL’s information on post-accident employment and/or self-employment income is unclear and is inconsistent, that it needs the information it has requested to calculate IRBs and potential deductions for post-accident income, which it is entitled to make.
14I find that Aviva is not liable to pay the IRBs claimed, because:
i. WLL fails to address the need to clarify her post-accident income from LGI, which is needed to assess IRB amounts. The evidence tells me that the request for more information to deal with this issue was reasonable and necessary, and the failure to explain this issue constitutes, in my view, a breach of s. 33.
ii. WLL does not contest Aviva’s claim that her legal representatives were notified by Aviva of its request and reminded of the consequences of non-compliance.
iii. Given the evidence provided by Aviva, I find nothing unreasonable in its request for more information, which was made on the professional advice of its accounting service provider, BDO. I am persuaded that it is not possible for Aviva to accurately calculate WLL’s IRB with the information provided by WLL to date and the issues noted (and uncontested by WLL) with it.
15I find that WLL has not met the onus on her in this case to prove her entitlement to IRBs.
Issue 2: FAE
16Sections 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. Section 15(1) specifies that medical benefits shall pay for expenses incurred by or on behalf of the applicant.
17The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.3
18WLL contends that she is entitled to an FAE because:
i. Two FAEs conducted by the insurer in WLL’s words “were insufficient to provide a balanced view of the Applicant's functional abilities, and that an examination at the behest of the Applicant was therefore warranted in the overall context of the claim.”
ii. Aviva's denial dated July 6, 2016 was based solely on the fact that the insurer had previously conducted its own FAEs. WLL asserts that only a portion ($350.00) of the disputed OCF-18 was for an FAE: the rest “is clearly outlined in the OCF-18 and included education, promoting health and preventing disease" among other things. WLL “therefore submits that the denial dated June 22, 2016 did not provide relevant or sufficient medical or other reasons for the denial required under s. 38(8) of the [Schedule], as only part of the OCF-18 was actually addressed. Section 38(11)(2) of the Schedule states that where the insurer's notice is deficient under subsection (8) the Insurer shall pay for the benefits described in the treatment plan.
19Aviva submits that WLL “has made no arguments and points to no evidence as to why an FAE specifically is reasonable and necessary in her case.”
20Aviva notes that two FAEs have already been conducted, the second on May 30, 2016. It noted this to WLL in its Explanation of Benefits dated June 22, 2016. It submits that it is at a loss to understand WLL’s assertion that the two FAEs were insufficient to provide a balanced view of her functional abilities.
21Aviva submits that the disputed FAE was never incurred and no report produced. Accordingly, it argues, the claimed benefit is not payable under s. 15(1) of the Schedule.
22Lastly, Aviva disagrees that the disputed OCF-18 was for anything other than cost of a FAE. It argues that the other items listed in the OCF-18 ("file and medical doc review", "education, promoting health and preventing disease", "data analysis/prepare report", "completion of OCF-18", and "claimant translation services") are clearly ancillary to the FAE itself, and not separate assessments or forms of treatment. Aviva notes that WLL did not object to how the issue was defined at the case conference and has instead waited until her submissions to argue that the issue was mischaracterized by Tribunal, which Aviva submits is procedurally unfair.
23I find that WLL has failed to prove that the FAE she seeks is reasonable and necessary, for the following reasons:
iii. WLL provides me with no explanation, analysis or argument as to why she needs the disputed FAE in the first place. The OCF-18 she submits in evidence provides no information on this point.
iv. WLL provides no argument support for her apparent belief that the FAEs already conducted by Aviva should be summarily rejected simply because they were commissioned by Aviva.
v. My own reading of the disputed OCF-18 is that it is clearly an FAE. The educational component is in my view, a part of that evaluation. Part 9 of the OCF-18, which itemizes included expenses indicates that only $112.81 of the estimated cost is for “education”. Every other line item appears to relate to the FAE. In fact, the $350.00 cited by the applicant is for “assessment, environment” which I read as one component of an overall assessment.
vi. WLL does not contest Aviva’s position that the FAE is not incurred and is therefore not payable. I share Aviva’s view on this point.
Issue 3: Physiotherapy
24WLL submits she indeed “suffered mainly soft tissue injuries”; however, “as it happens with a percentage of those with soft tissue injuries, [WLL] did not recover in the usual healing time seen with these types of injuries.” She suffers from chronic pain, which makes the goal of pain relief and remediation in the disputed OCF-18 reasonable and necessary.
25In support of her claim WLL relies on:
vii. A note from Dr. Georgia Palantzas, chiropractor in an OCF 18 dated August 19, 2015, indicating that WLL suffers from chronic pain;
viii. Clinical notes and records from Complex Care, WLL’s health services provider, noting WLL’s ongoing complaints of unresolved knee pain and recommending further intervention to address her pain complaints. The notes in question were from psychological service providers.
26WLL also urges me to discount the IEs used by Aviva to deny the disputed OCF-18 because those IEs were conducted to assess functional abilities and not medical treatment and therefore fail to address her need for ongoing pain management.
27To rebut WLL’s claim, Aviva relies on the following evidence:
i. An IE report by Dr. Ryan Mangel, GP, dated May 1, 2015 found no valid signs of musculoskeletal, orthopaedic, or neurological injuries, and no clinical indication of a physical impairment or physical disability. He diagnosed WLL with "uncomplicated, self-resolving, soft tissue injuries" and found further physical treatment beyond the minor injury limits to be not reasonable and necessary.
ii. An IE report by Dr. Frank Loritz, GP, dated June 22, 2016, diagnosed WLL with soft tissue contusive and myofascial sprain/strain injuries, and noted that WLL herself reported a 70% recovery and that "everything (was) better since (her) last assessment", with her most serious problems being psychological in nature.
iii. The clinical records that WLL relies upon “are all at more two years old, and the only records from 2016 are psychological treatment notes and progress reports, the most recent being a note dated August 15, 2016 which does not mention physical pain at all.” “If the Applicant truly suffered from chronic pain as alleged in her submissions, one would expect to see some indication of pain within the past 26 months.”
28I find that WLL has failed to meet the onus on her to show that the disputed OCF-18 for physiotherapy is reasonable and necessary:
i. The IE by Dr. Mangel was not focussed on FAE as suggested by WLL. It directly addressed her need for physiotherapy and other treatments similar to those proposed in the disputed plan. I find its conclusions, that further treatment is not reasonable and necessary, to be persuasive and reliable.
ii. WLL’s self-reporting to psychological service providers is less persuasive to me than Aviva’s evidence and WLL has failed to explain Aviva’s points about the lack of recent pain complaints in her medical evidence.
Award
29Section 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.
30Having found that WLL is not entitled to the benefits she claims, there is no basis for an award.
CONCLUSION
31WLL’s appeal is denied; accordingly there are no overdue benefit payments and therefore no interest is owing to WLL.
32There is no basis for an award in this matter.
Original Release Date: March 18, 2019
Amended Release Date: March 29, 2019
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
- Scarlett v. Belair, 2015 ONSC 3635