Karen Halstead v. Aviva Insurance Company, 2020 CanLII 101822

Released Date: 12/14/2020

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:

Karen Halstead

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Matthew Nieuwland, Counsel

For the Respondent: Sarah Fasih, Counsel

HEARD: Via written submissions

OVERVIEW

1The applicant was injured in an accident as a pedestrian on December 5, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva denied the applicant’s claim for the difference between vehicle model upgrades that would allow her to continue her pre-accident employment without hip and back pain. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Is the applicant entitled to $12,341.56 toward the purchase price of a new vehicle, submitted via treatment plan (“OCF-18”) to the respondent on November 21, 2017?

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

iii. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is entitled to $12,341.56 toward the purchase of the new vehicle, as it is reasonable and necessary, plus interest under s. 51. I find an award under s. 10 of O. Reg. 664 is appropriate in the amount of $1,200.00, plus interest.

ANALYSIS

The OCF-18

4The applicant seeks $12,341.56 in an OCF-18 completed by her occupational therapist (“OT”), Ms. Sharp, representing the incurred price difference between her previous vehicle, a 2016 Volkswagen Jetta, and a new vehicle, a 2017 Hyundai Tucson.

5As a result of the accident, the applicant sustained several injuries, most notable was a gluteal tear in her left hip that caused her consistent pain and required injections. Her pre-accident and current employment is as a coffee shop newspaper producer and distributor, which requires her to drive to over one hundred coffee shop locations in the province over the course of two days every week to deliver newspapers. As a smaller vehicle lower to the road, the Jetta put unnecessary strain on her hips while driving and made it more difficult and painful for her to get in and out of when making deliveries. In a similar vein, the lower trunk caused her to strain her back when removing deliveries.

6Accordingly, and on the advice of her OT, she negotiated a time-sensitive trade-in of the 2016 Jetta—which featured many upgrades and add-ons—for a 2017 Volkswagen Tiguan and submitted the OCF-18 to Aviva in the amount of $10,744.74, representing the difference in upgrading from a smaller vehicle to the SUV. The applicant was prepared to absorb the losses associated with the trade-in, such as the loss of tinted windows, snow tires, sunroof, intuitive lighting, and the extra fuel consumption and insurance premiums that come with driving an SUV.

7On December 6, 2017, Aviva denied the claim on the basis that it was not clear if the OCF-18 was reasonable and necessary for the injuries sustained in the accident. The notice indicated that an Insurer’s Examination (“IE”) would be arranged to determine whether the OCF-18 was reasonable and necessary. No IE was ever scheduled, and a proper medical reason was not provided.

8Instead, due to the ongoing exacerbation of her pain symptoms when driving the Jetta and Aviva’s delay in adjusting her claim for the OCF-18, the applicant traded-in the 2016 Jetta for a new vehicle. However, instead of the 2017 Tiguan, she purchased a 2017 Hyundai Tucson, because the Tiguan was no longer available at the negotiated price originally proposed. Notably, the applicant incurred a greater expense as a result of the delay.

Reasonable and Necessary

9Under ss. 14-17 of the Schedule, the applicant bears the burden of demonstrating that the benefit she seeks is reasonable and necessary for her accident-related impairments or to facilitate her reintegration into her family, the rest of society and the labour market. I find the applicant has met her burden and is entitled to the incurred difference between the vehicle upgrade as it is reasonable and necessary.

10To begin, I find the applicant’s handling of her post-accident situation and her claim in dispute here to be entirely reasonable. Indeed, despite her pain, she continued to work. When Aviva did not schedule an IE to support its determination, the applicant incurred the cost difference associated with upgrading her vehicle anyways to ensure that she would not breach any of her distribution contracts and so that she could perform her occupation without pain.

11Shortly after the accident, the applicant sought an OT report from Ms. Sharp dated November 21, 2017 to support the vehicle upgrade in the OCF-18. In preparation for this hearing, the applicant sought an addendum from Ms. Sharp dated August 10, 2020 to not only demonstrate that the upgrade was reasonable and necessary, but to summarize the attempts made by the OT and by the applicant to consider other less-expensive options besides an upgrade in vehicles. Instructively, the report also compares the notable differences between the Jetta (albeit a Corolla is used as a stand-in) and Tucson and how it assists the applicant in returning to her self-employment duties and reduces her accident-related pain. I found the OT reports in evidence to be very thorough and measured in what would constitute a reasonable and necessary expense to aid in the applicant’s recovery and job performance.

12Where Aviva failed to schedule an IE to rebut these very compelling reports, I have no evidence on which to doubt the applicant’s contention that the shift from the Jetta to the Tucson relieved her accident-related pain and allowed her to continue her employment. Indeed, Aviva’s submissions on this matter seem to focus (allegedly for the first time) on causation, submitting that the relation of the applicant’s hip pain to the accident “does not establish a causal relationship between the hip pain and the accident, particularly considering the applicant’s emergency record that did not reference any hip injury or complaints of hip pain immediately post-accident.” To this end, Aviva submits that the applicant’s hip pain is the result of her pre-existing, documented medical condition of trochanteric (hip) bursitis that was not materially worsened as a result of the subject accident, which means the OCF-18 is not reasonable and necessary.

13I agree with the applicant that this is an impotent defence. Left hip pain is listed in Part 5 of the applicant’s Disability Certificate from January 2017. Aviva did not raise causation in its Response by an Insurance Company. Aviva did not raise causation issues with the applicant’s hip when it elected to remove her from the Minor Injury Guideline on May 19, 2017. Aviva did not raise causation when it received a letter diagnosing a left hip gluteal medial tear along with an OCF-18 quote for PRP injections to the left hip on November 1, 2017. Rather, it agreed to pay for PRP injections to the left hip on November 9, 2017. Aviva did not schedule an IE to determine causation at any point. Aviva has not provided any direct medical evidence that contradicts that the applicant’s hip condition was aggravated or exacerbated by the motor vehicle accident. Aviva only raises causation now, in its response, and nearly three years after it received the OCF-18 in dispute and four years post-accident. Suffice to say, I do not find Aviva’s theory of the case persuasive.

14Aviva also asserts that the applicant has not met her burden of proof and has not demonstrated that she explored cheaper alternatives. I disagree and find the goals of the treatment plan and the reasoning of same align with the proposed upgrade. Further, the applicant and her OT were eminently reasonable in their approach and in their documentation, which I find to be highly detailed for a single treatment plan of this scope. For example, in Part 9 of the OCF-18, the goals of the treatment plan are identified as “improve driving tolerance,” “minimize impact of pain symptoms on work productivity,” “maintain and promote effectiveness at work” and “maintain ability to work.” The shift from the Jetta to the Tucson has, by all accounts, improved her driving tolerance, minimized her pain symptoms and has allowed her to maintain her productivity at work. It is clear and undisputed that the goals of the OCF-18 are being met.

15The addendum report provides further evidence of the success of the upgrade, noting at page 14 that while the applicant continues to experience bilateral hip pain that is worsened by prolonged sitting and repeated transfers, her subjective experience of pain symptoms improved with use of the Tucson and she was able to manage the demands of distribution independently. It is well-settled that pain relief is a legitimate goal for treatment. The report also notes that prior to the vehicle change, her husband was often required to help, and it appears that without her husband’s help, the applicant would not have been able to meet the demands of her employment prior to the switch in vehicles.

16I also find it very clear on the evidence that the applicant and her OT attempted to mitigate the costs of the OCF-18 and explored cheaper alternatives, contrary to Aviva’s submission. For example, the OCF-18 indicates the applicant and the OT explored ways to modify the existing seating in the Jetta to increase the hip angle without success; the OT contacted Volkswagen to see if seat modifications could be made but was advised that seat angle modifications could not be made on the Jetta model; the OT contacted a representative of a company called Goldline Vehicle Modification in order to determine if aftermarket modifications could be applied to the Jetta, but was told that safety standards precluded modifications to the make and model; the applicant and her husband test-drove the 2017 Tiguan and simulated her work day to see if a different model would exacerbate her hip symptoms; the applicant explored switching manufacturers but opted for the Tiguan in the OCF-18 because the trade-in difference would be less costly; the applicant conducted research into similar new and used Tiguan models and negotiated zero percent financing. In sum, the additional comments section of the OCF-18 spans one and a half pages and the addendum report has a very detailed analysis on the attempts that were made and the benefits of the Tiguan over the Jetta with regards to pain relief and ease of use, so I find Aviva’s submission that the applicant did not explore alternative arrangements to be perplexing. Rather, I find it clear that the degree of success and the availability of other alternatives were taken into account when the OCF-18 was proposed.

17It is also clear on the evidence that the applicant is not attempting to upgrade her vehicle at the expense of her insurer. The cost in the OCF-18, from another manufacturer, is within $1,500.00 of the original estimate for the Volkswagen Tiguan. In this vein, I consider the overall cost to be reasonable, as the applicant essentially received two quotes for the upgrade, with the difference being attributable to moving to a different vehicle brand. Further, the applicant has driven a Volkswagen Jetta for many years and the 2016 Jetta was the third of the same model purchased new. The applicant funded tinted windows, purchased snow tires and applied her business insignia on the windows. It was her intention to continue to drive the 2016 Jetta until its lower profile started to cause her pain and made work difficult. The applicant gained nothing materially from the trade-in proposed in the OCF-18 (and is incurring extra costs associated with some of the upgrades, as well as the increased costs of SUV ownership), only relief from her accident-related pain and an unimpeded ability to perform her job, which is the purpose of s. 16 and of the Schedule generally. Accordingly, I find the applicant is entitled to the OCF-18 in dispute as it is reasonable and necessary. As the benefit is overdue, it follows that interest is payable under s. 51.

Section 10 Award

18Under s. 10 of O. Reg. 664, the Tribunal has the discretion to order up to 50% of the total benefits payable if it determines that an insurer unreasonably withheld or delayed the payment of benefits.

19Here, the applicant seeks an award under s. 10 of O. Reg. 664 due to Aviva failing in its obligations under s. 32(2) to provide her with sufficient information to submit her application, for not adjusting the claim in a timely manner, by not scheduling an IE to properly address the claim, and “by leaving the applicant waiting needlessly for a solution to the exacerbation of her hip pain by driving an inappropriate vehicle.” The applicant also alleges Aviva failed to consider the totality of the medical and other information available to it when addressing the treatment plan and did not reconsider its position, based on new information. Further, the applicant submits that Aviva did not provide a proper medical reason in its denial, triggering s. 38(11). In response, Aviva submits that an award is not appropriate, arguing the applicant has only proffered “bald allegations” and oddly, that she “failed to provide an explanation with respect to the availability and utility of cheaper alternatives to the purchase of a new vehicle.”

20Concerningly, at para. 40 of its submissions, Aviva concedes that it did not provide a valid medical reason for denying the OCF-18, an error which it seemingly never rectified. It also does not rebut the applicant’s claim that it failed to schedule an IE to assess the reasonableness and necessity of the OCF-18—despite claiming it would in its explanation of benefits letter—but continued to deny that it was reasonable and necessary for three years without medical evidence. This delay caused the applicant to miss out on the negotiated trade-in price for the 2017 Tiguan and forced the applicant to incur the greater cost of the Tucson upgrade without the security of approval from Aviva.

21Nearly three years later, with clear, unrebutted evidence that the goals outlined in the initial OCF-18 were being met and with several compelling explanations specifically detailing how the applicant attempted to mitigate and control the costs to relieve her pain and continue to work, Aviva stubbornly maintained its denial and forced a hearing where it, for the first time post-accident, raised causation issues. In my view, this is the type of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” adjusting conduct that should attract an award under s. 10.² On the evidence, I find the improper denial, the failure to schedule an IE, the subsequent delay and unyielding position that compounded payment to be unreasonable, unsupported and worthy of deterrence. Accordingly, I find a ~10% award in the amount of $1,200.00 is appropriate, plus interest, representing the vehicle upgrade total proposed in the OCF-18, minus the cost of completing the form.

ORDER

22The applicant is entitled to the cost of the OCF-18 in the amount of $12,341.56 as she has demonstrated that it is reasonable and necessary. Interest applies pursuant to s. 51. The applicant is also entitled to an award under s. 10 of O. Reg. 664 in the amount of $1,200.00, plus interest, as a result of Aviva unreasonably withholding and delaying the payment of benefits.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, for e.g., Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) and S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).