Cranston Viera v. Aviva General Insurance, 2020 CanLII 87952

Viera vs. Aviva General Insurance, 2020 ONLAT 19-007227/AABS

Released Date: 10/21/2020

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:

Cranston Viera

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Maia Abbas, Counsel

Heard by Way of Written Submissions

OVERVIEW

1On July 26, 2016, Cranston Viera (“Mr. Viera”), the applicant, was injured in an automobile accident and, as a result, sought benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”) from Aviva General Insurance (“Aviva”).

2Aviva denied Mr. Viera’s claim for a chronic pain assessment which led Mr. Viera to submit an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). Following a case conference, this matter proceeded to a written hearing.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is Mr. Viera entitled to $2,200.00 for a chronic pain assessment recommended by Mississauga Active Physiotherapy Services in a treatment plan submitted on March 29, 2018, and denied on April 9, 2018?

(ii) Is Mr. Viera entitled to interest on any overdue payment of benefits?

(iii) Is Mr. Viera entitled to an award under O. Reg. 664 because Aviva unreasonably withheld or delayed the payment of benefits?

RESULT

4I find that the treatment plan for the chronic pain assessment is payable, plus interest in accordance with s. 51 of the Schedule, as a result of Aviva’s failure to comply with s. 38(8) of the Schedule. Mr. Viera is not entitled to an award under O. Reg. 664.

ANALYSIS

Chronic Pain Assessment

5The sole treatment and assessment plan (“OCF-18”) in dispute in this matter was completed by Dr. Nayyar Razvl, physician, on March 22, 2018 and sought funding in the amount of $2,200.00 for a chronic pain assessment.

6Mr. Viera submitted that Aviva did not provide a proper denial to this OCF-18 as required under s. 38(8) of the Schedule. The relevant portions of Aviva’s April 9, 2018 denial is reproduced as follows:

We’re unable to determine whether the recommendations on your OCF-18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.²

7Aviva also provided notice of an insurer’s examination (“IE”) for a physiatry paper review assessment at this time along with the following medical reasons for the IE, “the diagnosis, prognosis, treatment plan, or medication appears to change during the treatment without an apparent documented explanation in the clinical records.”³ No other reasons for the IE were provided.

8Aviva sent a second letter dated April 13, 2018 to Mr. Viera regarding the OCF-18 in dispute which contained all of the same wording as its April 9, 2018 letter except that this letter provided notice to Mr. Viera that he was required to attend a psychological IE in-person assessment on May 12, 2018.⁴

9A third letter was sent to Mr. Viera from Aviva which was dated May 24, 2018. This third letter contained all of the same wording regarding Aviva’s denial of the disputed treatment plan and reasons for an IE as the two previous letters. This notice, however, advised Mr. Viera that the in-person psychological IE assessment had been rescheduled to June 21, 2018.

10On July 11, 2018, Aviva sent a fourth letter to Mr. Viera. In the details portion of the letter, Aviva lists “OCF18 dated March 22, 2018 for Physician Assessment” and states the following:

As per Physiatry and Psychological IE assessment reports dated July 6, 2018 is [sic] not reasonable or necessary as the claimant reached miximum [sic] improvement for both physical and psychological impairments. Therefore we will not be funding for this assessment [sic].⁵

11No other attachments were included with Aviva’s July 11, 2018 letter in Aviva’s hearing submissions despite the letter noting “Insurer’s Examination” as an enclosure.

12Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,⁶ which was referenced by both parties in this matter, in which the Executive Chair stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.⁷

13Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule. As such, the insurer is given a window to “cure” a defective notice but without such a cure, any goods, services, assessment and examinations set out in the treatment plan are payable as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.⁸

14I find that Aviva’s April 9, 2018, April 13, 2018 and May 24, 2018 denial letters were deficient because none of these letters included any specific details about Mr. Viera’s condition forming the basis of Aviva’s decision and only generally referred to Mr. Viera’s injuries without any details or explanation. Further, these letters contain no medical reason for Aviva’s denial of the treatment plan.

15The reasons provided for the IEs in these three correspondences from Aviva also do not assist in discharging Aviva’s onus under s. 38(8). The IE notices simply state, in very generic terms, the diagnosis, prognosis, treatment plan, or medication, without any indication which option applies to the proposed OCF-18, appears to change during the treatment despite the proposed OCF-18 seeking funding for an assessment and not treatment, without an apparent documented explanation in the clinical records. I do not agree with Aviva’s submissions that it was clear from these comments that Aviva considered the clinical notes on file as there was no specific information provided to Mr. Viera about which clinical notes Aviva was referring to. I agree with Aviva’s submissions that an insurer’s denial is not expected to be something resembling a medical opinion and it is not to be held to a standard of perfection, but I also agree that it should be clear and provide meaningful and accurate reasons for the insurer’s denial based on the insured’s medical condition and these denials all fail to provide any clear or meaningful information to Mr. Viera. Therefore, I agree with Mr. Viera and find that Aviva’s April 9, 2018, April 13, 2018 and May 24, 2018 correspondences were boilerplate and failed to comply with the requirements of s. 38(8) of the Schedule.

16Aviva’s July 11, 2018 correspondence provided additional information but, in my opinion, still falls short of the requirements in s. 38(8) of the Schedule. As a result of the grammatical errors in this letter, which I also find makes the correspondence less clear to an unsophisticated person, this letter does not state that the proposed assessment is not reasonable and necessary as argued by Aviva.⁹ In fact, the only comments in this letter regarding reasonableness and necessity are in relation to Aviva’s physiatry and psychological IE assessments. Further, simply referring to IE reports, as it is unclear which reports were attached to the letter due to the lack of description of the enclosures at the end of the correspondence, and noting that, “the claimant reached miximum improvement for both physical and psychological impairments (my emphasis added),” is not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue and, quite frankly, as a result of the spelling error makes little to no sense.

17As a result of my findings of Aviva’s non-compliance with s. 38(8) of the Schedule regarding these four letters, and no evidence that these defects were cured by any addition correspondence from Aviva, I find that Aviva has not provided a denial to Mr. Viera regarding the proposed chronic pain assessment that complies with Aviva’s obligations under s. 38(8) of the Schedule and, as a result, the consequences set out in s. 38(11) are triggered. Therefore, the treatment plan for the chronic pain assessment is payable as Aviva no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

Interest

18Mr. Viera is entitled to interest in accordance with s. 51 of the Schedule for the chronic pain assessment.

Award

19Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. In this matter, Mr. Viera seeks an award based on his position that Aviva unjustifiably and unreasonably withheld payment of the proposed chronic pain assessment.

20It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract a s. 10 award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

21I find that Mr. Viera has not met his burden of proving on a balance of probailities that he is entitled to an award in this matter as my findings that Aviva failed to comply with its obligations under s. 38(8) of the Schedule does not in and of itself amount to an unreasonable withholding or delay of payment of benefits. No other evidence is before me that support a finding that Aviva’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate but rather that this was a situation where Aviva misapplied the Schedule and “got it wrong.”

22Therefore, I find that Mr. Viera is not entitled to an award under O. Reg. 664.

CONCLUSION

23For the reasons outlined above, I find that:

(i) the treatment plan for the chronic pain assessment is payable, plus interest in accordance with s. 51 of the Schedule; and

(ii) Mr. Viera is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Hearing Submissions of the Respondent, tab 26.
3. 3Ibid.
4. 4Ibid. at tab 28.
5. 5Ibid. at tab 29.
6. 62018 CanLII 39373 (ON LAT).
7. 7Ibid. at para. 19.
8. 8See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at paras. 50-52, 59 and 64.
9. 9Supra note 2 at para. 35.