H.A. v. Aviva General Insurance Company, 2020 CanLII 45487

Licence Appeal Tribunal

Citation: H.A. vs. Aviva General Insurance Company, 2020 ONLAT 18-012325/AABS

Released Date: 07/03/2020

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:

H. A.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Lawrence H. Calenti, Counsel

For the Respondent:

Andrew Smith, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on December 16, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference, however were unable to resolve the issues in dispute. The matter proceeded to this written hearing. There was a lengthy delay in reaching a determination in this matter as the Tribunal was missing the applicant’s submissions and a portion of her document brief which took a significant amount of time for her to resubmit.

ISSUES

3I have been asked to decide the following issue:

(i) Is the applicant entitled to receive a cost of examination in the amount of $2,672.45 for an EMG, nerve conduction studies, recommended by Vincenzo Basile in a treatment plan submitted on January 7, 2019 denied by the respondent on January 11, 2019?

RESULT

4After reviewing the parties’ submissions and all of the evidence I find the applicant is not entitled to the disputed treatment plan.

ANALYSIS

5Sections 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 an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

6Section 38(8) requires an insurer to, within 10 business days after receipt of a treatment plan, provide the applicant with notice of the goods and services it agrees to pay for and those which it will not. It must also give medical and all other reasons for its decision. If an insurer fails to fulfill its obligations pursuant to section 38(8), section 38(11)2 entitles the insured to the goods and services related to the period starting on the 11^th business day after receipt of the treatment and assessment plan and ending on the day the insurer provides a compliant notice.

7The applicant argues that she is entitled to the disputed treatment plan for the cost of examination for two reasons. First, because the respondent failed to comply with its obligations and provide proper notice with medical reasons under s.38(8). Second, because the cost of examination is reasonable and necessary as a result of her accident-related injuries.

8The respondent submits that it provided the applicant with proper notice with adequate medical reasons and that the cost of examination is not reasonable and necessary. In addition, it maintains that the applicant is not entitled to the cost of examination as funding for EMG studies is available through OHIP. Section 47(2) of the Schedule states that an insurer is not required to pay a benefit if payment is reasonably available to the insured person under any insurance plan or law. Finally, it asserts that even if it did not comply with s.38(8) of the Schedule the issue is moot as the applicant incurred the cost of the treatment plan prior to the deadline for the respondent to respond.

9While I agree with the applicant that the respondent did not provide proper notice in accordance with s.38(8), I find the applicant is not entitled to the treatment plan as she incurred the cost of same prior to the 11^th business day, the deadline for the respondent to reply.

10The applicant submitted the treatment plan in the amount of $2,672.45 for the EMG, nerve conduction studies, to the respondent on January 7, 2019. The respondent denied the treatment plan on January 24, 2019, which was beyond the 10 days set out in the Schedule. The medical reason provided was: “the type(s) of treatment does not appear consistent with the patient's diagnosis. Diagnostic studies appear to be ordered or repeated without objective clinical documentation for their necessity.” The applicant incurred the treatment plan on January 17, 2019. The applicant contends that the reasons the respondent provided for denying the treatment plan were not sufficient as this was her first request for an EMG study. Second, the treatment plan referred to the physiatry report of Dr. Chen which recommended that the applicant undergo the EMG study and the rationale for why. Therefore, medical documentation was provided.

11I agree with the applicant that the medical reasons provided by the respondent for denying the treatment plan were insufficient. The applicant submitted the Tribunal’s Reconsideration Decision of the Executive Chair in B.H. v. Aviva Canada Inc., 2018 Carswell Ont 15131 in support of her position that the respondent did not comply with its obligations under s.38(8). I agree with the applicant that the reasons for the denial of the benefit in that case are practically identical to the present case. The Executive Chair highlighted the importance of insurance companies to provide meaningful denials. The decision states “an insurer’s medical and other reason should be clear and sufficient enough so that an unsophisticated person can make an informed decision to accept or dispute a decision.” I agree with the applicant that in the present case the respondent did not fulfill its duty as its reasons are vague.

12Despite the fact that the respondent’s denial of the treatment plan was deficient, I agree with the respondent that the issue is moot as the applicant incurred the cost of the treatment plan prior to the deadline for the respondent to respond. The treatment plan was submitted on January 7, 2019, making a response due by January 22, 2019. The applicant incurred the treatment plan on January 17, 2019, which was the 11^th day following the submission of the treatment plan, not after the 11^th business day as set out in the Schedule.

13The applicant’s position that the respondent is responsible to pay for the treatment plan due to deficient notice fails to appreciate that section 38(11)2 limits entitlement to the goods and services described in the treatment plan for the period starting on the 11^th business day (not before) and ending on the day when sufficient notice was provided.

14Since I have determined that the treatment plan is not payable for the above reasons, I need not address whether it is reasonable and necessary. The applicant is not entitled to the treatment plan for the cost of examination in the amount of $2,672.45 for an EMG, nerve conduction studies, recommended by Vincenzo Basile.

ORDER

15For all of the above reasons, I order as follows:

(i) The applicant is not entitled to the cost of examination in the amount of $2,672.45 for an EMG, nerve conduction studies, recommended by Vincenzo Basile in a treatment plan submitted on January 7, 2019 and denied by the respondent on January 11, 2019.

(ii) The application is dismissed.