Citation: Melvin v. Aviva Insurance Canada, 2023 ONLAT 21-010332/AABS

Licence Appeal Tribunal File Number: 21-010332/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:

Renee Melvin

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Michael Adamek, Counsel

For the Respondent:

Daniel MacDonald, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Renee Melvin, the applicant, was involved in an automobile accident on April 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $1,700.00 for an occupational therapy assessment, proposed by Novus Rehabilitation Limited in a treatment plan (“OCF-18”) dated March 11, 2021?

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

3. The applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to the OCF-18 in the amount of $1,700.00 for an occupational therapy assessment recommended by Novus Rehabilitation plus interest. I find the respondent is not liable to pay an award.

ANALYSIS

OCF-18 for occupational therapy assessment

4Section 25(1) 1 of the Schedule provides that an insurer shall pay reasonable fees for the preparation of an assessment. The onus is on the applicant to prove that the assessment is reasonable and necessary and that there is a link between the assessment sought and an accident-related impairment.

5The applicant argues that the OCF-18 for an occupational therapy assessment is reasonable and necessary because she sustained both physical and psychological impairments as a result of the accident which have resulted in functional limitations in her ability to carry out her activities of daily living and tasks of her pre-accident occupation. She relies on the OCF-18 itself, which includes a screening interview, the clinical notes and records (“CNRs”) of Dr. Bodak, her family doctor, a report of Dr. Zielak, physiatrist, dated November 29, 2021, and psychological and progress reports of Ms. Etti Daskal, psychological associate, dated September 30, 2022, and February 27, 2023.

6The respondent submits that the OCF-18 for the occupational therapy assessment is not reasonable and necessary. It maintains that the applicant sustained soft-tissue injuries as a result of the accident and that there is no residual musculoskeletal impairment that would result in any functional limitations. Further, it argues that the applicant has failed to prove that she has any functional limitations as a result of any accident-related psychological impairment, in which the assessment is meant to address. It relies on the insurer examination reports (“IEs”) of Dr. Lee, general practitioner, and Dr. Bradbury, psychologist, both dated June 3, 2021, and addendum report of Dr. Lee, dated September 9, 2021.

7I agree with the applicant and find the OCF-18 for an occupational therapy in-home assessment reasonable and necessary for the following reasons. The OCF-18 dated March 11, 2021, completed by Rachel Koral, occupational therapist, recommended the assessment for the purpose of determining her current functional tolerances, assess activities of daily living and the need for treatment. Further, it was to identify any occupational performance issues related to the applicant’s injuries and the need for treatment in order to return her to her activities of daily living. First, I find the goals of the OCF-18 to be a reasonable objective. Second, I find the cost of the assessment reasonable as it was not above the $2,000 maximum payable for assessments as per s.25 (5) (a) of the Schedule. Third, I find the need for an occupational therapy assessment is reasonable based on the medical evidence before me which supports that the applicant has struggled with functional limitations post-accident, which impacted her occupation and ability to carry out some of her daily activities which are highlighted below.

8The applicant made regular complaints to her family doctor, Dr. Bodak, following the accident that she was suffering from poor sleep, ongoing fatigue and was having difficulty with focus and concentration that was having an impact on her ability to function. For example, on June 1, 2020, she reported difficulty completing paperwork, she felt slowed down and working on the computer overwhelmed her. On September 22, 2020, she reported increased depression and anxiety, problems with memory and not being interested in going to work.

9The applicant’s ongoing issues with depression and anxiety were also supported by the IE of Dr. Bradbury who diagnosed her with adjustment disorder, with mixed anxiety and depressed mood as a result of the accident and recommended psychological treatment. While the report notes that she can carry out some physical activities such as yoga and barefoot hiking, the report states that the applicant “has a tendency to become easily overwhelmed by situational stressors; and feelings of unhappiness and disappointment secondary to the setbacks that have transpired in her life since her accident occurred, even further complicated by the COVID-19 stay home pandemic precautions which have further limited her access to healthcare and impeded her ability to successful re-integrated into her prior activities post-accident.”

10The applicant was also consistent in reporting to all assessors throughout this claim that following the accident she returned to work on modified duties and was working reduced hours because of her accident-related impairments. However, of significance, it is unclear how long the applicant would have been working on modified duties because she was stopped from working altogether because of Covid19. Despite the complications of Covid19, I find there is evidence of functional limitations in her occupation as a result of the accident and that an occupational therapy assessment would be reasonable to address the extent of these limitations.

11I find that the applicant has met her onus in proving that the OCF-18 for an occupational therapy assessment is reasonable and necessary to address functional limitations as a result of her accident-related psychological impairment.

Interest

12Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that the OCF-18 is reasonable and necessary the applicant is entitled to interest.

Award

13The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

14In analyzing whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

15The applicant argues that she is entitled to an award because the respondent maintained a stubborn and inflexible position regarding its handling of the OCF-18 for an occupational therapy assessment. She maintains that the respondent blindly accepted the IE reports, failed to continually adjust the file, and produced no evidence of actual analysis of the medical information produced. She submits that the last note of anything done on the file is from August 20, 2021, when the adjuster emailed counsel for the applicant advising that despite the numerous concerns identified about the IE reports, the respondent was maintaining its position. The applicant sought an award of 30%.

16The respondent submits that the applicant has not submitted any evidence in support of her position that the respondent’s conduct meets the stringent test for an award. It contends that it did not blindly accept the IE reports. Instead, it reassessed its denial of the disputed OCF-18 when medical records were provided by having Dr. Lee complete an addendum report. Further, it submits that the case law supports that an insurer is not held to a standard of perfection and an award is not punishment for differing views of a file. Finally, it is entitled to rely on its IE assessments and should not be punished for getting it wrong. I agree with the respondent.

17As a starting point, I find the applicant has not established that the respondent’s conduct in denying the benefits meets the test of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Further, the applicant alludes to flaws in the IE reports but failed to articulate in her submissions how the IE reports are flawed. From a review of the email between counsel for the applicant and the adjuster dated August 15, 2021, it appears that the applicant takes issue with the IE of Dr. Lee. However, although I have determined the OCF-18 for an occupational assessment is reasonable and necessary as a result of the applicant’s psychological assessment, I prefer Dr. Lee’s opinion regarding her physical impairment. Dr. Lee diagnosed the applicant with whiplash and soft tissue injuries which I find consistent with the CNRs of the family doctor at the time the OCF-18 was submitted as well as the doctor’s physical examination which was normal. Counsel highlighted in the email that Dr. Lee failed to address how an MRI noting degenerative disc disease would impact the applicant’s recovery. However, the applicant has failed to specify the importance of this in her submissions or how it would impact Dr. Lee’s findings. I do not find an award is warranted because the respondent relied on that opinion.

18In addition, the fact that I have accepted the applicant’s medical evidence over the opinion of Dr. Bradbury is not worthy of an award. I agree that the respondent should not be penalized for having a different perspective on the file and relying on the opinions of its IE assessors. In this case, there was reason for the respondent to question the applicant’s post-accident function because she reported to Dr. Bradbury that she continued to enjoy yoga and barefoot hiking. In addition, the fact that my decision is not in the respondent’s favour is not worthy of an award.

19For the above reasons, the applicant has not met her onus in proving on a balance of probabilities that an award is warranted in this case.

ORDER

20The applicant is entitled to the OCF-18 in the amount of $1,700.00 for an occupational therapy assessment recommended by Novus Rehabilitation plus interest. I find the respondent is not liable to pay an award.