Shweihat v. Aviva Insurance Company of Canada, 2022 CanLII 20129

Citation: Shweihat v. Aviva Insurance Company of Canada, 2022 ONLAT 20-001897/AABS

Licence Appeal Tribunal File Number: 20-001897/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:

Lara Shweihat

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Lori Marzinotto

APPEARANCES:

For the Applicant:

Lara Shweihat, Applicant

Francesco Vumbaca, Paralegal / Articling Student

For the Respondent:

Cara Boddy, Counsel

Held by Teleconference:

May 14, 2021 & Written Submissions (May 31, 2021, June 14, 2021, June 21, 2021)

BACKGROUND

1The applicant was injured in an automobile accident on May 21, 2018 (the “Accident”). The applicant sought benefits from the respondent, Aviva Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) which were denied. The applicant disagreed with the denials and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the dispute.

2The issues in dispute in the application were a medical benefit in the amount of $1,310.65, recommended by Southmount Physiotherapy, in a treatment plan (the “OCF-18”) ¹ submitted on February 6, 2019 and subsequently denied.² The applicant also sought an award.

3The issue regarding the OCF-18 was resolved prior to the case conference. The only issue remaining is the applicant’s claim for an award under O.Reg. 664³ based on the applicant’s allegation that the respondent unreasonably withheld or delayed payment of the OCF-18.

4The hearing proceeded by videoconference with written submissions that followed.

ISSUE IN DISPUTE

5The issue to be decided in the hearing is:

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

RESULT

6I find for the reasons that follow, that the respondent did not unreasonably withhold or delay payment of the OCF-18 and therefore the applicant is not entitled to an award.

BACKGROUND & ANALYSIS

7A short chronology:

i) The applicant submitted the OCF-18 on February 6, 2019.

ii) An Insurer’s Examination was conducted by Dr. Khaled who prepared a report dated July 25, 2019.

iii) Based on Dr. Khaled’s report and finding that the OCF-18 was not reasonable and necessary, the OCF-18 was denied.

iv) On August 6, 2019, the respondent sent an explanation of benefits (“EOB”) to the applicant denying the OCF-18.

v) The applicant disputed the denial and filed an application with the Tribunal on February 4, 2020.

vi) A case conference was held on July 17, 2020, and the respondent approved the treatment plan at the case conference.

Test for an Award under Ontario Regulation 664

8The Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest.⁴ The threshold for an award under O.Reg 664 is high.

9As cited in M.P. v. Aviva General Insurance of Canada⁵, analyzing whether an insurer has unreasonably withheld or delayed payment of benefits for the purpose of s.10 of O. Reg. 664 entails:

i) assessing whether the insurer exceeded the limits of what is reasonable;

ii) unreasonable behaviour by an insurer in withholding or delaying payments can be seen as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

iii) an insurer must carefully consider all of the available information, giving appropriate weight in a fair and even-handed manner;

iv) an insurer has a continuing obligation to adjust a claim;

v) the insurer’s handling of the claim is not to be held to the standard of perfection and should not by judged with the benefit of hindsight, rather it should be evaluated on the basis of the information available at that time.

10The applicant submits that the respondent had medical evidence at the time of the denial but ignored it. At paragraph 7 of her written submissions, the applicant summarizes the medical evidence she says the respondent had in its possession and ignored. The respondent addresses this in its written submissions at paragraph 13-15 and submits that at the time of the denial, it was not in possession of some of the documents summarized by the applicant and that some of these records were first provided to respondent’s counsel with the applicant’s Case Conference Summary.⁶

11The applicant alleges that the respondent only considered its s.44 insurer’s examination (“IE”) report of Dr. Khaled dated July 25, 2019 in denying the OCF-18 and failed to consider and ignored the other medical evidence in the respondent’s possession which the applicant submits, contradicts Dr. Khaled’s report.

12I did not find Dr. Khaled’s report inconsistent with the medical records.

13The applicant alleges that Dr. Khaled erred, and the report was inconsistent in noting that the applicant did not see her physician for the accident. I find no error in the report in this regard. Dr. Khaled notes that the applicant had not seen her own physician for this accident. While the respondent submits that this is inaccurate and points out that the applicant went to her family doctor 6 times, upon review of Dr. Khaled’s medical notes between the date of the accident and July 25, 2019 (the date of Dr. Khaled’s report), it is clear that the applicant’s attendances at Dr. Akladios were unrelated to the accident.⁷

14The applicant alleged that Dr. Khaled failed to adequately analyze that the applicant continued to experience pain beyond the typical 9-12 weeks healing time. I disagree. Dr. Khaled specifically addressed this and even noted in his report that the applicant was experiencing residual pain but assured the applicant it was benign.

15Dr. Khaled found the OCF-18 not reasonable and necessary. It was his opinion that the applicant had had appropriate and adequate facility based therapy and that prolonged facility based therapy is rarely recommended.

16The applicant’s past medical history was considered by the respondent and included in the report. Dr. Khaled does note the applicant’s neck pain and low back pain prior to the accident. Pre-existing conditions do not automatically entitle an applicant to recommended treatment. As noted by the applicant in her submissions, in looking at the pre-existing injuries and impairments, do they reasonably prevent the applicant from achieving maximum medical recovery if subjected to the limits of the Minor Injury Guideline.

17The respondent considered the applicant’s pre-existing injuries and found there was no evidence to support that the pre-exiting injuries were exacerbated by the accident that would require continued treatment.

18In addition, if the applicant’s pre-existing condition was a relevant factor in recommending the treatment in the OCF-18, that is, one would expect them to have been noted in the OCF-18. Pre-existing conditions do not appear to be a factor that was considered in recommending the treatment plan and, in fact, under Part 7 “Prior and Current Condition”, the treatment provider selected “unknown” to the question of whether the applicant had any “disease, condition or injury that could affect his/her response to the treatment for the injuries identified in Part 6”.⁸

19I do not find that the respondent unreasonably withheld or delayed payment but considered and relied on the medical evidence it had and the medical opinion of the IE assessor in denying the OCF-18. This case does not meet the high threshold for an award.

20The respondent submits that when the IE was scheduled in May 2019, the applicant had not been to treatment since April 8, 2019 and had not completed the already approved treatment in the August 23, 2018 treatment plan for the same treatment provider.⁹ The adjuster testified that the treatment plan was also denied, in part, because Dr. Khaled found that the treatment was not reasonable and necessary.

21The fact that the respondent did not approve the OCF-18 until the case conference is not a basis for granting an award. Case conferences are an opportunity for the parties to resolve issues in dispute and therefore avoid the cost of bringing a matter to a hearing. In its written submissions, the respondent maintains its position that there was evidence to support the denial of the OCF-18 but in good faith, approved the OCF-18.

CONCLUSION

22For the reasons found above, I find that the applicant is not entitled to an award. I dismiss the application.

Footnotes

1. 1Applicant’s Written Submission, Tab 4 – OCF-18
2. 2Although the issue in dispute indicated the OCF-18 was denied on February 21, 2021, it appears it was denied in an Explanation of Benefits dated August 6, 2019. Tab 17- Applicant’s Written Submissions.
3. 3Ontario Regulation 664, R.R.O. 1990.
4. 4Section 10 O.Reg 664.
5. 5M.P. v. Aviva General Insurance of Canada, 2019 CanLII 119736 at para 14.
6. 6This is consistent with the correspondence attached at Tab 7 and Tab 8 of the Respondent Written Submissions.
7. 7Tab 3 – Applicant’s Written Submissions.
8. 8Tab 4, Applicant’s Written Submissions.
9. 9Tab 14, Respondent’s Written Submissions.