Citation: Dankha v. Aviva Ins. Co., 2021 ONLAT 19-009569/AABS

Release date: 06/11/2021

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:

Dhia Dankha

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Ben Fotia, Counsel

For the Respondent:

Sarah Fasih, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on January 30, 2018, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues identified in the Case Conference Order as being in dispute were the applicability of the MIG and three treatment plans dated June 25, 2018, July 10, 2018 and May 7, 2019, as well as interest and an award under s. 10 of O. Reg. 664. In submissions, the parties advised that Aviva has since approved all of the treatment plans in dispute and removed the applicant from the MIG. Accordingly, the only issue remaining in dispute is as follows:

a) Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to a s. 10 award.

ANALYSIS

Section 10 Award

4Under s. 10 of O. Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. An award should be proportionate and considerate of the blameworthiness of the insurer, the vulnerability of the insured and the advantage wrongfully gained by the insurer from its misconduct. The Tribunal has found unreasonable behaviour by an insurer to be behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

5The applicant submits that there was more than sufficient medical evidence to substantiate his need for physical treatment beyond the MIG as a result of his pre-existing injuries. Further, he submits that there was ample evidence to support his struggle with psychological sequelae caused by his injuries that warranted treatment. The applicant submits that Aviva refused to fully approve his physical treatment claim despite evidence of need due to his pre-existing condition.

6With regard to the other two treatment and assessment plans, the applicant asserts that Aviva refused to approve the OCF-18s for a psychological assessment and for treatment despite the report of Ms. Aghamohseni indicating that he was suffering from severe psychological impairment as a result of the accident. Further, the applicant alleges that Aviva did not schedule a s. 44 assessment until 1.5 years after the OCF-18s were submitted, resulting in an unreasonable delay in receiving treatment and exacerbation of his distress.

7In seeking an award of 50% of the total amount claimed, the applicant submits that Aviva’s conduct was malicious, arbitrary, high-handed and a departure from the ordinary standard expected of a sophisticated insurance company. He asserts that Aviva secured a financial advantage at the expense of harm to him where it unjustly withheld the payment of benefits, which contradicts the consumer protection principles of the Schedule.

8In response, Aviva first raises a preliminary issue regarding the pre-accident clinical notes and records of the applicant’s physician, Dr. Gerges, which it alleges were never disclosed or produced prior to the submission of the applicant’s document brief on October 27, 2020. It submits that it would be procedurally unfair for these documents to be admitted as evidence under Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure and for the Tribunal to rely on same in making a s. 10 award where the documents were not previously available to Aviva when it was adjusting the claim.

9With regard to the s. 10 award, Aviva submits that the Tribunal has consistently found that an award should only be made in extraordinary circumstances and the facts of this case do not support an award and do not evidence a delay. It asserts that the applicant did not produce clinical notes and records or compelling medical evidence to support removal from the MIG in advance of the submission of the OCF-18s. Aviva relies on the Case Conference Order requiring the applicant’s outstanding productions, which it submits is evidence that it did not possess the pre-accident clinical notes and records until at least after the date of the case conference which took place on June 2, 2020. It points to the June 27, 2018 OCF-18 that only lists soft-tissue injuries and no pre-existing medical conditions as further evidence that it was not unreasonable to maintain that the MIG applied.

10Aviva submits that on receipt of the psychological OCF-18 dated May 7, 2019, it scheduled a s. 44 assessment for June 18, 2019. However, Aviva submits that the applicant failed to attend the examination, which the applicant did not refute despite having the benefit of reply. The s. 44 examination was rescheduled and proceeded on September 2, 2020. Aviva asserts that despite not receiving the relevant documentation, it approved the OCF-18s in good faith. In sum, Aviva submits that it did not unreasonably withhold or delay the payment of benefits to the applicant and, if there was any delay, it was caused by the applicant’s failure to timely provide compelling medical evidence and to attend the s. 44 assessment.

11I agree with Aviva. The applicant did not rebut any of Aviva’s assertions and his initial submissions seem to gloss over the fact that he failed to timely provide the relevant clinical notes and records on which he now attempts to rely. It is well-settled that the applicant bears the burden of demonstrating entitlement beyond the confines of the MIG. Where the applicant fails to produce compelling medical evidence to support his OCF-18s, it cannot be said that it is Aviva who is acting unreasonably. Where the applicant waits to produce the relevant clinical notes and records requested on the eve of the hearing—and where Aviva still approved treatment and removed the applicant from the MIG in good faith—it cannot be said that it is Aviva who is acting in bad faith.

12In addition, it is difficult to accept the applicant’s position that an award is applicable based on Aviva’s alleged delay in scheduling a s. 44 examination to determine entitlement where he failed to attend the s. 44 examination that was scheduled mere weeks after the submission of his OCF-18. Where his submissions neglect to mention that he failed to attend the properly scheduled s. 44 examination and where he did not provide a reason for his initial failure to attend, the Tribunal cannot find that it was Aviva that unreasonably withheld or delayed the payment of benefits or that it was the party that acted excessively, imprudently, stubbornly, inflexibly, unyieldingly or immoderately. Suffice to say, I find an award is not appropriate, as I find no evidence that Aviva unreasonably withheld or delayed the payment of benefits to the applicant.

CONCLUSION

13The applicant is not entitled to a s. 10 award.

Footnotes

1. 1O. Reg. 34/10, as amended.