Bhavsar v. Aviva Insurance Company of Canada, 2021 CanLII 33694

Citation: Bhavsar v. Aviva Insurance Company of Canada 2021 ONLAT 19-006756/AABS

Release date: 04/23/2021

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:

Naiya Bhavsar

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Sandeep Johal, Vice Chair

APPEARANCES:

For the Applicant:

Michael Brill

For the Respondent:

Frank A. Benedetto

Heard:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on July 23, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for an attendant care benefit (“ACB”) and physiotherapy treatment which was denied as not being reasonable and necessary.

3The applicant’s claim for an ACB is with respect to an amount that the applicant submits was incurred and paid to the ACB provider after the ACB was denied.

4The applicant completed an Application by an Injured Person for Auto Insurance Dispute Resolution dated June 1, 2018 to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

5The respondent raised a preliminary issue at the case conference that the applicant’s claim for an ACB and the physiotherapy treatment plan in the amount of $3,500.10 were disputed after the two-year limitation period and are accordingly statute-barred. The limitation period issue will also be addressed as part of this decision.

ISSUES IN DISPUTE

6The following are the issues in dispute for this hearing:

a. Is the applicant statute-barred from disputing the ACB in the amount of $2,651.00 and the physiotherapy treatment plan in the amount of $3,500.10 due to the expiry of the limitation period in s. 56 of the Schedule?

b. Is the applicant entitled to $2,651 for the balance owing on an attendant care benefit?

c. Is the applicant entitled to a medical benefit in the amount of $3,500.10 for physiotherapy services, denied by the respondent September 13, 2017?

d. Is the applicant entitled to a medical benefit in the amount of $1,540.10 for physiotherapy services, denied by the respondent September 13, 2017?

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

RESULT

7The applicant’s appeal of the ACB and the physiotherapy treatment plan is not statute-barred, and the applicant is entitled to dispute these denials at the Tribunal;

8The treatment plan in the amount of $3,500.10 is reasonable and necessary;

9The treatment plan in the amount of $1,540.10 is not reasonable and necessary;

10The remaining amount owing on an attendant care benefit in the amount of $2,651 is not reasonable and necessary; and

11The applicant is entitled to interest on the overdue payment of benefits on the treatment plan in the amount of $3,500.10 in accordance with the Schedule.

ANALYSIS

Limitation Period

12For the following reasons, I find that the applicant did not commence her Tribunal application outside of the two-year limitation period.

13Section 56 of the Schedule sets out that the application to dispute a denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

14In Turner v. State Farm Mutual Automobile Insurance Company,² it was held that the insurer’s denial must be clear and unequivocal and in Seitzema v. Economical Mutual Insurance Company,³ the Court of Appeal found that an insurer’s denial was valid if it gave the applicant a clear notice of their rights to mediation, followed by arbitration, litigation or a neutral evaluation if the applicant wished to dispute the refusal, and a clear notice of the two-year limitation period.

Attendant Care Benefit

15The respondent submits its letter dated February 23, 2017 was its initial refusal the pay the ACB on the basis that the applicant did not provide information regarding incurred expenses. The applicant did not commence her Tribunal application until June 21, 2019 which is more than two years and therefore, according to the respondent, it is outside the limitation period.

16The applicant’s position is that an insurer examination (“IE”) was conducted on May 30, 2017 and as a result of that IE, the respondent sent a letter which was received on June 23, 2017 where the respondent states, “please accept this letter as our formal response and denial of this treatment and assessment plan and any associated invoices.”⁴

17Upon review of the February 23, 2017 letter sent by the respondent, I find that letter was not a clear and unequivocal denial. The third paragraph reads as follows:

Based on the findings outlined in the Form 1, the insurer agrees to fund attendant care needs at $1205.24 per month from February 2, 2017 and ongoing, pending a further determination.⁵

18The letter goes on to advise the applicant of her maximum limit for attendant care benefits and if any expenses have been incurred they must be submitted on an Expenses Claim Form (OCF-6) with supporting documentation to satisfy the incurred expense definition as set out in the Schedule.

19The letter dated February 23, 2017 from the respondent is not a clear and unequivocal denial letter. The letter dated June 22, 2017 with a fax confirmation that it was sent to the applicant’s counsel on June 23, 2017 in my view is the clear and unequivocal denial. In that letter, it states that based on an IE by Ronald Findlay, Occupational Therapist, the treatment and assessment plan is not reasonable and necessary and “based on this report, your entitlement to Attendant Care Benefits has been stopped effective June 29, 2017.”⁶

20As a result, I find that the letter dated June 22, 2017 was in accordance with the Turner and Seitzema cases as it was a clear and unequivocal denial and set out the appeal process.

21The applicant submitted her Tribunal application to dispute the ACB denial on June 21, 2019 and it was therefore, within the limitation period and the applicant is entitled to dispute the ACB at the Tribunal.

Physiotherapy in the amount of $3,500.10

22For the following reasons, I find that the applicant is statute-barred from disputing the denial of this treatment plan as her Tribunal application to dispute it was filed outside the two-year limitation period.

23The respondent submits the treatment plan was denied on April 18, 2017, pending an IE. The letter reads as follows:

Based on our review of your file, the injuries you sustained in the motor vehicle accident captioned above may not warrant the proposed goods and services noted on the OCF-18 as there is no clear objective medical evidence to support the above-mentioned OCF-18.⁷

24The applicant submits that on April 18, 2017 the respondent sent a letter acknowledging receipt of the treatment plan and that they would not deny it until they completed an IE to assist them with their determination. Once the IE took place, the respondent sent a letter by fax and mail dated June 16, 2017 denying the treatment plan. According to the applicant, this was the final denial of the treatment plan in dispute and service of the denial was not effective until the fifth business day after the document was mailed.⁸

25Section 64(2)(a) allows for service of a document to be faxed to the person, their solicitor or authorized representative. In the present case, the applicant acknowledges that her counsel received the fax denial on April 18, 2017. Furthermore, the fax confirmation page confirms it was sent to the applicant’s counsel by fax that day.⁹

26Upon review of the letter dated April 18, 2017, I find that it is in accordance with the Schedule and the cases of Turner and Seitzema, as it is a clear and unequivocal denial which also sets out the appeal process to dispute the denial. The letter states that the respondent is in receipt of the treatment and assessment plan and then goes onto state that “…we do not agree to fund the goods and services proposed in this Treatment and Assessment Plan at this time for the following reasons.”

27As a result of the above, I find that the letter dated April 18, 2017 was the clear and unequivocal denial of the physiotherapy treatment plan in the amount $3,500.10 and the Tribunal application to dispute it was filed on June 21, 2019 which was outside the limitation period.

28Neither party has provided any submissions with respect to section 7 of the Licence Appeal Tribunal Act,¹⁰ and whether it applies, or whether the Tribunal should exercise its discretion to extend the limitation period. As a result, the parties were invited to provide additional written submissions and those submissions were received and considered for the purposes of s. 7 of the LAT Act.

Jurisdiction to invoke section 7 of the LAT Act

29The respondent submits that the Tribunal does not have jurisdiction to extend the limitation period under s. 7 of the LAT Act and relies upon the decisions of S.S. v. Certas Home and Auto Insurance Company,¹¹ and M.N. v. Aviva General Insurance Company,¹² wherein Adjudicator Neilson determined in both cases that the Tribunal does not have jurisdiction to grant an extension under s. 7 of the LAT Act.

30In the alternative, the respondent submits that the reasoning in the case of Manuel v Registrar, Motor Vehicle Dealers Act,¹³ does not apply, and the reconsideration decision by the Executive Chair in A.F. v. North Blenheim Mutual Insurance Company,¹⁴ was wrongly decided. If I do conclude that the Tribunal has the jurisdiction to extend the limitation period, the respondent submits the applicant has not provided reasonable grounds of the four factors to extend the limitation period.

31Not surprisingly, the applicant takes the opposite position of the respondent with respect to whether the Tribunal has jurisdiction to invoke s. 7 of the LAT Act. According to the applicant, the decisions of S.S. v. Certas and M.N. are outlier decisions and a website search as of December 15, 2020 has reported 75 decisions and all except for S.S. v. Certas and M.N. found that s. 7 of the LAT Act applied.¹⁵

32The issue of whether the Tribunal has jurisdiction to invoke s. 7 of the LAT Act is currently before the Divisional Court for an ultimate determination and until that time, I would agree with the majority of the Tribunal jurisprudence that s. 7 provides the statutory authority for the Tribunal to extend the limitation period and I adopt it for the purposes of this hearing. In my view, the Tribunal has jurisdiction to grant an extension by virtue of s. 7 of the LAT Act if the justice of the case requires that it should be extended.

33As a result, I will now turn to discuss whether or not the limitation period should be extended.

Section 7 of the LAT Act

34Section 7 of the LAT Act, which reads as follows:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

b) give the directions that it considers proper as a result of extending the time.

35In Manuel, the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:

a. The existence of a bona fide intention to appeal within the appeal period;

b. The length of the delay;

c. Prejudice to the other party; and

d. The merits of the appeal.

36The applicant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.

Bona fide intention to appeal

37The applicant submits that she had a bona fide intention to appeal within the appeal as it was her assumption that the denial of the treatment plan was June 23, 2017. The Tribunal application was submitted on June 21, 2019 and therefore within the two-year appeal period.

38The respondent submits that other than the applicant’s submissions there is no evidence in support showing the existence of a bona fide intention to appeal within the appeal period and the lawyer’s submissions alone are not evidence.

39I agree with the respondent, as discussed above in paragraphs 23-27, the letter dated April 18, 2017 was the clear and unequivocal denial and other than the applicant’s submission that it was her belief that the denial letter was June 23, 2017, I have not been provided with any submissions or evidence of a bona fide intention to appeal within the appeal period. As a result, I find that this factor does not favour the applicant.

Length of the delay

40The applicant takes the position that based on a denial date of June 16, 2017 (the date of the IE report of Dr. Weisleder) the delay would be 5 calendar days or 4 business days.

41The respondent submits that the delay was more than 2 years and is inconsistent with the applicant’s assertion that the benefits were required. If there was an urgency to requiring the benefits the applicant would not have waited more than 2 years to dispute the denial.

42In my view, the denial was April 18, 2017 and not June 16, 2017 as submitted by the applicant. The length of the delay is 64 calendar days or 45 business days. I would not consider this to be a significant delay, nor would I consider it to be a “very short” delay as in the case of Z.P. which was 19 calendar days.¹⁶ I would not consider this a factor to be in support of either party in determining whether to grant the extension or not, however, every factor does not need to be in one party’s favour.

Prejudice to the respondent

43The applicant submits there is no prejudice to the respondent and that the reconsideration decision of North Blenhiem upheld the principle in Elkhouli v. Senathirajah et al.,¹⁷ that an assertion of prejudice must be accompanied by actual evidence of prejudice.

44The respondent submits that it will be prejudiced as the claim is from 2017 and there is insufficient evidence that a 3-year old claim is material to the applicant’s current needs. Furthermore, to allow the application to proceed when the claim is statute-barred is prejudicial because it undermines certainty of limitation periods.

45I would not agree with the respondent and I am not persuaded that the respondent would suffer much, if any prejudice in a claim that missed the limitation period by 45 business days. Furthermore, to accept the respondent’s submission that the treatment plan was from 2017 and not material to the applicant’s current needs would undermine the respondent’s duty to continuously adjust an insured person’s file. This would also incentivize insurers to allow time to pass in order to justify a denial. That would not be in keeping with the insurer’s good faith duty to the applicant. As a result, I find this factor to be in favour of the applicant.

Merits of the appeal

46This factor does not require me to make a determinative ruling on the merits, but on the facts to assess whether the applicant has a reasonable chance of success. The applicant submits that she has been removed from the MIG and is currently being assessed for a catastrophic impairment and that she continues to receive IRB after 104 weeks which means that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Furthermore, the applicant relies upon the medical evidence in support of the treatment plan.

47The respondent submits there is no merit in the claim as the account activity from Wanless Rehab does not show that the treatment plan was incurred.

48In my opinion, the fact that the applicant was receiving benefits and currently does, would support her position that there is a reasonable chance of success and that is all that is required with respect to this factor. If a treatment plan is not incurred, that does not on its own suggest that the treatment plan has no merit or is not reasonable and necessary.

49All four factors do not need to be satisfied; however, an analysis and balancing all the factors as discussed above is required. After a consideration of the four factors, I find that the applicant may not have had a reasonable explanation for the delay of 45 business days however, I find that there is some merit to the applicant’s claim and I am not persuaded there is or would be any prejudice to the respondent. After considering all four factors together, I conclude that the justice of the case warrants extending the limitation period for the treatment plan.

50I will now turn to discuss the treatment plans and the attendant care benefit.

Physiotherapy treatment plans

Physiotherapy Treatment Plan for $3,500.10

51After a review of the medical evidence I find that the treatment plan dated March 30, 2017 in the amount of $3,500.10 to be reasonable and necessary, however the treatment plan in the amount of $1,540.10 is not reasonable and necessary for the following reasons.

52The applicant submits the treatment plan is reasonable as its contents were never in dispute and the costs associated with it were in accordance with the Schedule. Furthermore, the applicant submits the treatment plan is necessary because at the time she was seeking medical advice from a chronic pain clinic and complaining of neck and back impairments and she was also in receipt of ACBs. Lastly, the applicant submits, the goal of the treatment plan was to reduce pain, increase strength, help return her to activities of normal living and the treatment plan was incurred.

53In support of her position, the applicant relies upon the clinical notes and records of Dr. Akef, a chronic pain specialist who diagnosed the applicant with fibromyalgia as well as a partial thickness of the right side rotator cuff tear, rotator cuff syndrome, cervicogenic headache and myofascial pain in the upper back and neck.¹⁸

54The applicant also relies upon the orthopaedic IE assessment conducted by Dr. Weisleder wherein he opined that the physiotherapy treatment plans are not reasonable and necessary as the applicant has reached maximum medical recovery.¹⁹ However, the applicant submits that in his report, Dr. Weisleder found the applicant to have residual tenderness in the region of her neck, upper back and lower back as well as limitations in the ranges of motion of her neck and shoulders. Despite these findings, Dr. Weisleder opined that there are no medically supported restrictions or limitations at this stage. As a result, the applicant submits, the IE report is incomplete, unreliable and it failed to diagnose the severity and extent of all the applicant’s impairments.

55Based on a review of the medical documentation, the respondent’s IE assessment by Dr. Weisleder and the treatment plans, the applicant had functional impairments around the time and leading up to the first treatment plan in the amount of $3,500.10. The applicant’s doctor, Dr Akef diagnosed the applicant with fibromyalgia as well as partial thickness of the right-side rotator cuff tear, rotator cuff syndrome, cervicogenic headache and myofascial pain in the upper back and neck.²⁰

56Dr. Weisleder’s IE report dated June 12, 2017 noted that based on his current findings of the applicant he noted her cervical spine to have tenderness in the midline and over both paracervical muscles. He noted her range of motion of the cervical spine was half-normal for flexion and extension, as well as half-normal lateral rotation and bending to the right, and one-quarter normal bending to the left. The applicant’s right shoulder flexion and abduction were 90 degrees and internal and external rotation were 45 degrees. The examination also revealed lumbar spine tenderness in the midline and over both paravertebral muscles and range of motion in the applicant’s spine to be at half-normal. Dr. Weisleder also notes that the applicant’s back pain and her condition has not changed since the first time he assessed her back in December, 2016. Despite these limitations and impairments, he finds that she has reached maximal medical recovery and as a result, the treatment plan in the amount of $3,500.10 was not reasonable and necessary.²¹

57Dr. Akef and Dr. Weisleder find similar impairments and functional restrictions of the applicant and I place less weight on Dr. Weisleder’s report as he does not clarify how in his opinion the applicant has reached maximum medical recovery despite having the limitations and impairments that she has which are similar to those noted by the applicant’s family doctor.

58As a result, I find that the treatment plan in the amount of $3,500.10 to be reasonable and necessary.

Physiotherapy treatment plan for $1,500.10

59I am not persuaded on a balance of probabilities that this treatment plan is reasonable and necessary for the following reasons.

60The applicant relies upon the same medical documentation in support of this treatment plan as she does for the one for $3,500.10.

61The $1500.10 treatment plan was dated August 3, 2017 which notes that she continues to have right shoulder pain and the goal of the plan is to increase strength.

62The respondent submits that there is no basis to measure whether the plan is reasonable and necessary and relies upon the opinion of Dr. Weisleder that the applicant has reached maximal medical recovery.

63With the onus on the applicant to prove her claim on a balance of probabilities, I am not persuaded that this treatment plan is reasonable and necessary. I am not presented with submissions or evidence on whether the applicant is benefiting from the treatment or whether she has had any improvements to her functional abilities that were noted to be impacted as listed in the treatment plans. I am not presented with evidence to show additional treatment is recommended or whether the goals of the treatment plan are being met to a reasonable degree.

64As a result, I find that the treatment plan in the amount of $1,500.10 is not reasonable and necessary.

Attendant Care

65For the following reasons, I find that an attendant care benefit in the amount of $2,651 is not reasonable and necessary.

66The applicant submits that the Form 1 for attendant care needs in the amount of $1,205 per month was approved by the respondent, however the amount of $2,651 remains outstanding. According to the applicant, she has incurred this amount by way of a confirmation letter dated May 3, 2018 by the professional providing those services.

67The respondent submits that by way of a letter dated February 23, 2017 it agreed to fund the amount on the Form 1 in the amount of $1,205.24 per month pending a further determination. An IE for an Occupational Therapy In-Home Assessment was scheduled by Ronald Findlay who produced a report dated June 12, 2017.²² In that report, Mr. Findlay opined that the applicant does not present with an objective functional impairment for which she requires an aide or assistant to complete her personal care duties.

68By way of a letter dated June 22, 2017 the respondent advised the applicant that her entitlement to an attendant care benefit has been stopped effective June 29, 2017.²³

69A letter from the applicant, dated September 6, 2017 outlines details of the services provided and claims attendant care expenses in the amount of $1,204 for the months of February through to August 2017.

70The respondent submits it paid the applicant’s attendant care benefits up to the date of denial, being June 29, 2017 and takes issue with the remaining amounts as the attendant care bills of the provider, refer to a “him” in terms of assistance and according to the respondent the attendant care invoices pertain to that of the applicant’s son and not to that of the applicant herself.

71The onus in this situation to prove attendant care falls on the applicant on a balance of probabilities and I am not persuaded that the applicant has met that onus.

72Mr. Ronald Findlay opined that the applicant no longer met the entitlement test to qualify for an attendant care benefit and the respondent communicated its denial was effective June 29, 2017 and paid for incurred attendant care benefits up to that date.

73With the onus being on the applicant, I have not been provided with submissions and evidence on the need for an attendant care benefit past the date of Mr. Ronald Findlay’s Occupational Therapy In-Home Assessment report of June 12, 2017. Furthermore, the applicant has not provided any submissions and evidence on why the expenses were incurred for five months after the respondent denied the benefit and whether they are reasonable and necessary.

74As a result, I find that the applicant’s request for payment for the remaining balance for attendant care needs past June 29, 2017 is not reasonable and necessary.

ORDER

75The applicant’s appeal of the ACB and the physiotherapy treatment plan is not statute-barred, and the applicant is entitled to dispute their denials at the Tribunal;

76The treatment plan in the amount of $3,500.10 is reasonable and necessary;

77The treatment plan in the amount of $1,540.10 is not reasonable and necessary;

78The remaining amount owing on an attendant care benefit in the amount of $2,651 is not reasonable and necessary; and

79The applicant is entitled to interest on the overdue payment of benefits on the treatment plan in the amount of $3,500.10 in accordance with the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 22005 CanLII 2551 (ON CA) at para. 5. (“Turner”)
3. 32014 ONCA 111 at para. 14. (“Seitzema”)
4. 4Written Submissions of the Applicant at Tab 5.
5. 5Written Submissions of the Respondent at Tab 9.
6. 6Written Submissions of the Applicant at Tab 5.
7. 7Written Submissions of the Respondent at Tab 30.
8. 8Section 64(18) of the Schedule.
9. 9Written Submissions of the Respondent at Tab 30.
10. 101999, S.O. 1999, c. 12, Sched. G. (“LAT Act”)
11. 112016 CanLII 153125 (ON LAT)(reconsideration) (“S.S v. Certas.”).
12. 122019 CanLII 119731 (ON LAT) (“M.N.”)
13. 132012 ONSC 1492 (“Manuel”)
14. 142017 CanLII 87546 (ON LAT)(reconsideration) (“North Blenheim”)
15. 15Written Reply Submissions of the Applicant at Tab 4. search results dated December 15, 2020.
16. 16Z.P. vs. Guarantee Company of North America, 2020 CanLII 12697 (ON LAT) (“Z.P.”) at para. 22.
17. 172014 ONSC 6140.
18. 18Written Submissions of the Applicant at Tab 14, Consultation Report of Dr. Akef, dated December 14, 2016.
19. 19Written Submissions of the Respondent at Tab 31.
20. 20Supra Note 18.
21. 21Written Submissions of the Respondent at Tab 31.
22. 22Written Submissions of the Respondent at Tab 12.
23. 23Ibid at Tab 14.