Citation: Luluquisin v. Aviva Insurance Company of Canada, 2022 ONLAT 20-010381/AABS

Licence Appeal Tribunal File Number: 20-010381/AABS

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:

Rell Nowell Luluquisin

Applicant

and

Aviva Insurance Company of Canada and Intact Insurance Company

Respondents

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Mireille Dahab, Counsel

For the Respondent:

Patrick Baker, Counsel, Aviva Insurance Company

For the Respondent:

Jason H. Goodman, Counsel, Intact Insurance Company

Heard by way of Videoconference:

July 22, 2021 and

By Written Submissions

REASONS FOR DECISION AND ORDER

BACKROUND

1Rell Nowell Luluquisin (“applicant”) was involved in an automobile accident on March 17, 2017 (“accident”). The applicant suffered injuries in the accident, which were determined to be catastrophic by the first insurer to respond to the applicant’s statutory accident benefits claim, Aviva Insurance Company of Canada (the “respondent Aviva”), in February, 2020.

2The applicant sought certain benefits from the respondent Aviva pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was denied certain benefits by the respondent Aviva. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution in September, 2020.

3In August, 2021, Intact Insurance Company (the “respondent Intact”) assumed priority for the applicant’s claim from the respondent Aviva. The respondent Intact was not handling the applicant’s claim at the time any of the benefits in dispute in this proceeding were denied by the respondent Aviva.

4The respondent Intact was added as an additional respondent to this proceeding by the Tribunal’s October 4, 2021 Order.

5The respondent Aviva remains as a party as the applicant claims an award against it.

ISSUES

6The issues to be decided in this hearing are set out in the Tribunal’s amended January 14, 2021 case conference Order as:

i. Is the applicant entitled to attendant care benefits (“ACB”) at the rate of $6,000.00 per month from April 19, 2020 to date and ongoing?

ii. Is the applicant entitled to $2,200.00 for a neurological assessment proposed by Novo Medical Services in a treatment plan/OCF-18 (“plan”) submitted on submitted on February 13, 2019 and denied on March 19, 2019?

iii. Is the applicant entitled to $465.51 for occupational therapy services (laptop) proposed by Miranda Mo & Associates in a plan submitted on May 21, 2020 and denied on June 8, 2020?

iv. Is the applicant entitled to $3,847.03 for chiropractic services proposed by Healthmax Physio in plan submitted on April 7, 2020 and denied on August 26, 2020?

v. Is the applicant entitled to $865.59 for assistive devices proposed by Healthmax Physio in plan submitted on March 26, 2020 and denied on April 28, 2020?

vi. Is the applicant entitled to $7,460.00 for social work counselling proposed by Miranda Mo & Associates in plan submitted on August 19, 2020 and denied on August 27, 2020?

vii. Is the applicant entitled to $6,256.57 for aquatherapy proposed by Healthmax Physio in plan submitted on March 9, 2020 and denied on August 26, 2020?

viii. Is the applicant entitled to $10,081.00 for case management services proposed by DM Partners Inc. in plan submitted on June 4, 2020 and denied on August 26, 2020?

ix. Is the applicant entitled to $1,382.90 for transportation services submitted via OCF-6 on April 20, 2020 and denied on April 29, 2020?

x. Is the applicant entitled to $2,200.00 for a home renovation assessment proposed by Miranda Mo & Associates in plan submitted on October 2, 2020 and denied on October 19, 2020?

xi. Is the applicant entitled to $2,454.35 for a chronic pain assessment proposed by Healthmax Physio in plan submitted on September 9, 2020 and denied on November 26, 2020?

xii. Is the applicant entitled to $2,454.35 for multidisciplinary concussion treatment proposed by Healthmax Physio in plan submitted on November 12, 2020 and denied on January 4, 2021?

xiii. Is the applicant entitled to $2,454.35 for a TMJ dental assessment proposed by Dr. Treger in plan submitted on December 10, 2020 and denied on January 4, 2021?

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

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

RESULT

7The applicant is entitled to $1,029.42 per month for ACB for the period claimed, if not already paid. The applicant is entitled to $9,426.16 for case management services, if not already paid. The applicant is entitled to $2,014.24 for chiropractic treatment if incurred, and if not already paid. Interest, if applicable, is payable in accordance with s. 51 of the Schedule on these amounts.

8The applicant is not entitled to the remaining claims.

9No award is made.

LAW

10Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.²

ANALYSIS

11After considering all of the evidence, submissions and legal authorities put forward by all parties, I find the following:

Is the Applicant Entitled to ACB at the rate of $6,000.00 per month from April 19, 2020 to date and ongoing?

12The onus is on the applicant to prove entitlement to ACB and that the amount of the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities. The applicant has not established with medical evidence that the ACB in the amount of $6,000.00 per month from April 19, 2020 to date and ongoing, is reasonable and necessary.

13The respondent Aviva initially approved the applicant’s claim for ACB but, reduced the claim to $1,029.42 per month based on an occupational therapy in-home assessment which indicated the ACB need was in that amount. ACB was suspended on September 16, 2021 as a result of the applicant’s failure to attend an IE.

14Further, requests by the respondent Aviva for additional information regarding the invoices purporting to represent services incurred by the applicant pursuant to s. 46.2 of the Schedule remain unsatisfied by the service provider. As a result, it appears that the services and the quantum of the claim greater than $1,029.42 per month has not been established as reasonable and necessary. As a result, the applicant is entitled to $1,029.42 per month for the period claimed, if not already paid.

Is the Applicant entitled to $2,200.00 for a Neurological Assessment?

15I find that the applicant is not entitled to this assessment because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

16As confirmed by Marcela Soltyz, Aviva’s adjuster, on her cross-examination, the applicant has seen an OHIP funded specialist, Dr. Roussev, in 2017 who indicated that the applicant did not require any further neurological follow-up but, indicated he would be happy to reassess the applicant in the future if concerns arose. As a result, the applicant can access Dr. Roussev should the need arise. Under s. 47(2) of the Schedule an insurer is not required to pay for an expense for which payment is reasonably available to the insured under any insurance plan or law. Here, I find the care of Dr. Roussev is reasonably available to the insured and the payment of this claimed benefit is not reasonable or necessary.

17Further, I accept the opinion of the respondent’s neurologist Dr. Moddel, who also opined that the applicant does not have any neurological impairments in regard to the accident, and that the applicant’s ulnar neuropathy is quite common and probably unrelated to the accident.

Is the Applicant entitled to $465.51 for Occupational Therapy Services (Laptop)?

18The applicant claims $465.51 for occupational therapy services proposed by the applicant’s occupational therapist Angel Chan in a May 21, 2020 treatment plan recommending the purchase of a laptop. The purchase of the laptop is proposed at $1,200.00 and the documentation support activity charge is $200.00 for a total of $1,400.00.

19By correspondence dated June 8, 2020, the respondent Aviva partially approved this treatment plan in the amount of $934.49 and paid the approved amount the cost of the laptop plus $200.00. The receipt for purchase of the laptop dated June 2, 2020 shows a total purchase price of $734.49 including HST.

20I find that the applicant is not entitled to the balance claim because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary. The cost of the laptop was approved, paid and delivered to the applicant. There is no basis for a claim to the balance of $465.51.

Is the applicant entitled to $3,847.03 for chiropractic services?

21In correspondence sent to the applicant April 23, 2020, the respondent Aviva approved $2,014.24 of the applicant’s claim for this treatment “if incurred” on a without prejudice basis due to the COVID-19 pandemic. The respondent Intact now takes the position that applicant’s failure to attend an IE on this treatment plan as requested, puts the applicant in non-compliance with s. 44 of the Schedule in relation to this item and the applicant should be precluded from disputing this item in this proceeding.

22I find, however, that in their submissions, the respondent Aviva did not retract the approval of the $2,014.24, if incurred. As a result, I find that the applicant is entitled to claim $2,014.24 for this treatment if incurred, and if not already paid.

23I find that the balance of the applicant’s claim for this specific treatment has not been sufficiently established by the medical evidence put forward, especially considering the February 6, 2020 report from respondents assessor Dr. Marchuk, who opined that the applicant’s condition has plateaued and further facility based treatment will not likely aid in further recovery. Further, the applicants claim is also barred by s. 55 for failure to attend the reasonable and properly scheduled IE assessment without reasonable excuse.

Is the applicant entitled to $865.59 for assistive devices?

24This treatment plan dated March 26, 2020 made by Dr. Icatar, applicant’s chiropractor, recommends a TENS unit for $700.00, back support with rigid shell for $800.00, heat pad for $150.00 and a documentation charge of $200.00, plus tax, totalling $2,064.50.

25On April 28, 2020, the respondent Aviva approved a total $1,198.91, comprised of $465.00 for the TENS unit, $329.00 for the back brace and $89.99 for the heat pad. Aviva gave the applicant the retail sources for these assistive devices at these prices.

26I find that the applicant is not entitled to payment of the balance of $865.59 for these assistive devices and the documentation charge, because the applicant has not provided sufficient evidence to demonstrate that the unapproved balance is reasonable and necessary. It appears from the respondent Aviva’s evidence that these items can be purchased for the amount already approved. In these circumstances, the cost suggested by the applicant, including the documentation charge, is not reasonable and necessary.

Is the applicant entitled to $7,460.00 for social work counselling?

27I find that the applicant is not entitled to payment of $7,460.00 for this proposed treatment because the applicant has not provided sufficient evidence to demonstrate that it is reasonable and necessary.

28In this treatment plan, the applicant’s occupational therapist Angel Chan recommends 15 weeks of social work counselling, home based social work, family counselling sessions including travel time, planning, brokerage service, documentation, claimant transportation and community outing funds totalling $6,710.48. Approximately one-half of the amount to be charged is for “training, motor and living skills” treatment for the applicant. Given the amount to be charged for services not directly involving treatment of the applicant, the cost of this treatment plan does not appear to be reasonable.

29Further, the goals of the treatment plan and the proposed services appear similar to another psychotherapy treatment that has already been provided by the respondent Aviva. Still further, it appears that the applicant has refused to attend a reasonable and properly scheduled psychological IE assessment without reasonable excuse.

Is the applicant entitled to $6,256.57 for aquatherapy?

30It is clear from the evidence before me that this treatment plan dated March 9, 2020 was not submitted to the respondent Aviva until April 7, 2020. The applicant did not put forward any explanation for this delay.

31The respondent Aviva admits in its submissions that it did not respond until August 24, 2020 which is outside the ten business day timeframe for response mandated by s. 38(8) of the Schedule. The consequences are well established. The insurer must pay for costs under the treatment plan in question until a compliant notice is given.³ However, there is no evidence of the cost being incurred during the period of non-compliance in April, 2020 and the notice on August 24, 2020. As a result, the payment claimed cannot be ordered based on the non-compliance and further analysis is required.

32I find that the applicant is not entitled to this treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

33Dr. Icatar, applicant’s chiropractor, recommends ten weeks of aquatherapy, aquatherapy fitness belt and shoes, and report and other documentation services and a facility fee totalling $5,964.07.

34The applicant did not point to any specific support for this treatment from his treating physicians or any evidence establishing that this treatment is required as a direct result of the accident. It is well established that a treatment plan, without more, is not sufficient evidence to establish an applicant’s entitlement on the basis of that it is reasonable and necessary.

Is the applicant entitled to $10,081.00 for case management services?

35The respondent Aviva’s correspondence dated March 30, 2021, confirms that this treatment plan has been approved in the amount of $9,426.16. The applicant has not established that the unpaid balance is reasonable and necessary given that the providers travel time appears excessive. As a result, the applicant is entitled to $9,426.16 if not already paid.

Is the applicant entitled to $1,382.90 for transportation services?

36The applicant claims $1,382.90 for Uber services submitted via OCF-6 on April 20, 2020 and denied on April 29, 2020. The services are described as $375.43 in 2018, $688.55 in 2019 and $318.88 in 2020. Various Uber receipts for 2018 to 2020 were filed in support.

37The respondent Aviva partially approved these expenses to the extent of $138.90 but denied the balance because the Uber charges were for travel to a treatment provider for which there was no approved treatment plan and therefore, not authorized under s. 15(2)(c) of the Schedule, and other charges lacked detail as to the destinations.

38I find that the applicant is not entitled to the balance of these expenses because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary, given the lack of detail in evidence about the destinations and the need for these trips.

Is the applicant entitled to $2,200.00 for a home renovation assessment?

39I find that the applicant is not entitled to this assessment because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

40There is little support for this disputed treatment plan from the physicians who have treated or assessed the applicant. The applicant’s treating occupational therapist Angel Chan proposed this treatment plan to explore the idea that the applicant can get a private space within the house so as to limit his contact with his family. There is insufficient medical evidence as to how the proposed treatment will achieve its goals or evidence establishing that the proposed treatment is reasonable and necessary as a result of injuries suffered in the accident, or that the overall cost is reasonable and necessary except from Angel Chan. It is well established that a treatment plan, without more, is not sufficient evidence to establish an applicant’s entitlement on the basis of that it is reasonable and necessary.

Is the applicant entitled to $2,454.35 for a chronic pain assessment?

41I find that the applicant is not entitled to this assessment because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

42It is clear from the applicant’s medical records that he has been referred to a pain clinic through his family physician, has been assessed and treated by OHIP funded physicians for pain and has been prescribed medications. Under s. 47(2) of the Schedule an insurer is not required to pay for an expense for which payment is reasonably available to the insured under any insurance plan or law which would include the physicians treating the applicant for his pain. As a result, I find the payment of this claimed benefit is not reasonable or necessary.

Is the applicant entitled to $2,454.35 for multidisciplinary concussion treatment?

43It is clear from the evidence before me that this treatment plan by Dr. Icatar dated August 2, 2020 in the amount of $4,189.85 for multidisciplinary concussion treatment was not submitted to the respondent Aviva until November 12, 2020. The applicant did not put forward any explanation for this delay.

44The respondent Aviva admits in its submissions that it did not respond until January 5, 2021 which is outside the ten business day timeframe for response mandated by s. 38(8) of the Schedule. The consequences are well established. The insurer must pay for costs under the treatment plan in question until a compliant notice is given.⁴ However, here there is no evidence of the cost being incurred during the period of non-compliance in November, 2020 and the notice on January 5, 2021. As a result, the payment claimed cannot be ordered based on the non-compliance and further analysis is required.

45I find that the applicant is not entitled to the payment claimed for this treatment plan because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

46I accept the opinion of respondent’s physician Dr. Rabinovitch that the applicant has no injuries warranting concussion treatment, over that of Drs. Chan, Jahandideh-Sheijani and Icatar, the applicant’s occupational therapist and chiropractors, who do not have the medical training and experience of Dr. Rabinovitch to diagnose concussion. I also have already found that the care of Dr. Roussev is reasonably available to the insured and the payment of this claimed benefit is not reasonable or necessary. Further, I accept the opinion of the respondent’s neurologist Dr. Moddel who also opined that the applicant does not have any neurological impairments in regard to the accident and that the applicant’s ulnar neuropathy is quite common and probably unrelated to the accident.

Is the applicant entitled to $2,454.35 for a TMJ dental assessment?

47This treatment plan, described more fully in paragraph 6(xiii) above, was not filed as evidence at this hearing and neither the applicant or the respondents Aviva and Intact made specific submissions about it.

48As a result, I find that the applicant is not entitled to the payment claimed for this treatment plan, because the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary.

Award

49Section 10 of Regulation 664 provides that the Tribunal may make an award if the respondent has unreasonably withheld or delayed payments.

50The applicant submits that the respondent Aviva unreasonably withheld or delayed payments and an award is warranted because the respondent Aviva did not approve of or pay for benefits that are no longer in dispute at this hearing, approved some benefits for purpose of the litigation and made arbitrary and unfounded bad faith denials of other benefits claimed by the applicant in breach of the respondent Aviva’s breach of fiduciary duty to the applicant. Further, the applicant submits that during her cross-examination at this hearing Marcela Soltyz approved an expense claim form OCF-6 dated April 20, 2020 which had remained denied for more than a year, which demonstrates the unreasonable and arbitrary withholding or delaying of payments by the respondent Aviva.

51The respondent Aviva submits that the applicant is not entitled to an award, because it adjusted the applicant’s claims in accordance with the findings of its independent assessors, paid within the coverage limits set out in the Schedule and did not act in an arbitrary manner as alleged by the applicant. The respondent Aviva also submits that the mere fact that it did not approve all claims submitted by the applicant on a blanket basis does not mean that the denials were made in bad faith. Aviva also denies that it approved certain benefits “for the purpose of litigation” as alleged by the applicant but rather because it had reviewed evidence provided and reconsidered its decisions which an insurer has an obligation to do. Further, Aviva submits that it has paid for the goods and services it approved to the extent that it has been invoiced by the clinics for services rendered in accordance with OCF-21 invoices, once received. Amounts approved but not yet paid have not been invoiced via HCAI during the period of Aviva’s handling of this claim. Prior claims in dispute and now paid are not relevant in this proceeding and do not constitute a “pattern of misconduct” but, resulted from the applicant’s delay in submitting the required evidence to allow Aviva to make determinations on entitlement to benefits in dispute.

52I agree with the submissions of the respondent Aviva on the award issue.

53I make no award. On the evidence before me, I find that payment was not unreasonably withheld or delayed.

54It is clear from the evidence that Aviva continued to adjust the applicant’s claim, as it is required to do, as updated medical and other information became available and in doing so has not unreasonably withheld or delayed payments. Further, given that the applicant failed to co-operate with Aviva by refusing reasonable requests for IEs and delayed in producing relevant medical and other evidence, I do not find that Aviva unreasonably withheld or delayed payments to the applicant.

55I find unpersuasive the applicant’s submission that non-compliance with s. 38(8) as to notice should attract an award. Non-compliance with s. 38(8) attracts payment consequences as explained above and is insufficient to warrant an award here.

56I also find the fact that Aviva’s adjuster approved an expense claim form relating to issue (iv) in paragraph 6 above during her cross-examination, does not demonstrate that the respondent Aviva unreasonably withheld or delayed payments sufficient to justify an award. To the contrary, Aviva’s adjuster reviewed the claim during her cross-examination and approved it to the extent of $3,585.25 but still disputes the $300.00 balance. Aviva’s adjuster did not maintain an untenable position but candidly admitted she had made some mistakes in the handling of the file.

57There is no evidence that the adjusters admitted mistakes were made dishonestly or in bad faith and the amounts in issue are relatively minor in relation to the file as a whole. These admitted mistakes of relatively minor amounts in the handling of a serious injury file with numerous treatment plans and claims for benefits does not, in my view, justify an award.

Interest

58The applicant claims interest on overdue payment of benefits, including those treatment plans which were approved during this proceeding. This claim for interest is not granted. Interest is provided for in s. 51 of the Schedule and is not within my discretion.

59Interest, if applicable, is payable in accordance with s. 51 of the Schedule.

ORDER

60For the reasons outlined above, the applicant is entitled to $1,029.42 per month for ACB for the period claimed, if not already paid. The applicant is entitled to $9,426.16 for case management, if not already paid. The applicant is entitled to $2,014.24 for chiropractic treatment if incurred, and if not already paid. Interest, if applicable, is payable in accordance with s. 51 of the Schedule on these amounts.

61The applicant is not entitled to the remaining claims.

62No award is made.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
3. 3Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (Div. Ct.)
4. 4Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (Div. Ct.).