Panchadcharam v. Aviva Insurance Company, 2023 CanLII 15061

Licence Appeal Tribunal

Citation: Panchadcharam v. Aviva Insurance Company, 2023 ONLAT 20-013921/AABS

Licence Appeal Tribunal File Number: 20-013921/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:

Thusharini Panchadcharam

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Janet Hueglin Hartwick

APPEARANCES:

For the Applicant: Thusharini Panchadcharam, Applicant Adam Warner, Counsel

For the Respondent: Tiffany McClelland, Litigation Specalist Thomas R Hughes, Counsel

Heard by Videoconference: September 19, 2022

BACKGROUND

1The applicant was involved in an automobile accident on February 28, 2019, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva denied her claims on the basis of the Minor Injury Guideline (“MIG”) and a lack of supporting medical documentation. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute on November 24, 2020.

2Prior to a case conference on May 5, 2021, the respondent removed the applicant from the MIG and approved all outstanding treatment plans. The only issues in dispute are interest and an award under s.10 of Regulation 664.

ISSUES IN DISPUTE

3The issues in dispute are:

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

ii. Is the applicant entitled to an award under s. 10 of Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4For the reasons that follow, I find the applicant is not entitled to an award or interest on any overdue payment of benefits.

ANALYSIS

5Section 10 of Regulation 664 states the 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 on all amounts then owing to the insured (including unpaid interest) at the rate of 2 percent per month, compounded monthly, from the time the benefits first became payable under the Schedule.” The Tribunal has determined an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”¹ The onus is on the applicant to prove, on a balance of probabilities, that Aviva’s conduct meets this criteria.

6The applicant asserts Aviva did not act on incoming medical reports thereby keeping the applicant in the Minor Injury Guideline (“MIG”) and out of treatment months longer than necessary.² She asserts a s.10 award is in fact a low threshold and cites Sivakumaru Sinnapu v. Economical Mutual Insurance that found ill will is not necessary to demonstrate “unreasonable” behaviour, rather the delay of action is sufficient evidence to meet the test.³

7The respondent argues it adjusted the applicant’s file in good faith despite the inaccessibility of legible clinical notes and records of family physician, Dr. Lambotharan. Aviva asserts the applicant did not provide updated, legible records despite sending several s. 33 requests to the applicant.⁴ Aviva submits an insurer is not held to a standard of perfection or having hindsight, but rather to act according to what information is available at the time.

8I find the applicant did not prove, on a balance of probabilities, that Aviva’s conduct constitutes an unreasonable withholding or delay of payment to justify an award. The applicant asserts Aviva did not act on medical evidence that could have provided earlier access to treatment. However, I find the applicant’s noncompliance with the s. 33 request frustrated the respondent’s ability to process incoming claims. The applicant did not offer submissions to explain the lack of compliance with the s. 33 request nor did she dispute the relevance of the insurer receiving the additional notes and records for Dr. Goldstein to create an addendum report. Accordingly, I find Aviva’s behaviour was in accordance with the Schedule.

9I am not persuaded by the applicant’s submission the criteria for a s.10 award is a low threshold. The applicant submits three case law decisions while relying significantly on Sivakumaru Sinnapu v. Economical Mutual Insurance and asserts a delay of action equates to unreasonable behaviour.⁵ I find this submission is incongruent with other statements in the decision, not the least of which highlighted the general standard of care imposed upon insurance adjusters is identified as “not to be error-free but simply to take reasonable steps similar to those that a reasonably prudent and careful claims adjuster would take.”⁶ I agree with the respondent’s case law provided.⁷ It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion. Therefore, I find the actions of the respondent are not unreasonable.

10I find the applicant did not prove that Aviva failed to act on medical evidence. The applicant asserts the respondent removed her from the MIG, in January 2021, for psychological reasons, without the transcribed clinical notes and records of the family physician.⁸ Therefore, Dr. Lambotharan’s notes were not required to act on incoming medical records.⁹ I find it was the inaction of the applicant not the respondent that frustrated the adjustment process. Dr. Goldstein, who assessed the applicant on February 4, 2020, stated, “there does appear to be some pre-existing low back pain noted in the family doctor’s notes which appear illegible. It may be prudent to review these notes and possibly provide an addendum once clarified. Defer until review of family doctor’s notes and the right shoulder ultrasound report, which are not included in the records.”¹⁰ I find that Aviva acted upon all incoming medical information in a timely manner despite the absence of legible records from the family physician.

11I find that the applicant has not met her onus and is not entitled to an award. Section 33 of the Schedule states the applicant has a duty to provide information to their insurer to assist “in determining their entitlement to a benefit” and the insurer is not liable to pay a benefit until this information is provided.¹¹ It is unclear why the applicant did not resubmit a legible copy of the clinical notes and records prior to the LAT application, yet submitted and was denied treatment plans in May, June, October and December 2020. I find that Aviva’s conduct was neither “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”¹²

INTEREST

12The applicant did not make submissions regarding interest. I decline to order it.

ORDER

13The applicant is not entitled to an award or interest on any overdue payment of benefits. The application is dismissed.

Released: February 28, 2023

__________________________

Janet Hueglin Hartwick

Adjudicator

Footnotes

1. 117-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).
2. 2IE Assessment Report, Dr. Goldstein dated February 18, 2020, Respondent’s Written Submissions, pg. 34, Manulife Group Benefits Attending Physician Statement, Applicant’s Written Submissions, pg. 915-916, and OCF-18 dated June 8, 2020 by Arunkumar Thankappan Pillai, Applicant’s Written Submissions, page 823.
3. 3Sivakumaru Sinnapu v. Economical Mutual Insurance, 2010 ONFSCDRS 98 FSCO A09-000900.
4. 4Correspondence from Aviva to applicant on March 2, 2020, March 31, 2020 and April 17, 2020, Applicant’s Written Submissions, page 845 – 847 and Respondent’s Written Submission page 37 – 40.
5. 5Sivakumaru Sinnapu v. Economical Mutual Insurance, 2010 ONFSCDRS 98 FSCO A09-000900, M.P. v Aviva General Insurance Company, 2019 CanLII 119736 (ON LAT) and 17-005910 v Aviva General Insurance, 2018 CanLII 110920 (ON LAT)
6. 6Ibid.
7. 7T.F. v. Peel 2016 CanLII 39373, Applicant v. Aviva (Paluch) 2018 CanLII 39463, F.P. v. Pilot 2018 CanLII 141006, J.G. v. Travelers Canada 2018 CanLII 76431, Applicant v. Aviva (Letourneau) 2018 CanLII 81880, M.A. (Al-Jameel) v. Aviva 2019 CanLII 101601, F.A.-W. v. Aviva 18-008742/AABS, A.J. (Al-Jameel) v. Aviva 2021 CanLII 35559 and Blas v. Aviva 2021 CanLII 127471
8. 8Respondent’s Written Submissions, pg. 42.
9. 9IE Assessment Report, Dr. Goldstein dated February 18, 2020, Respondent’s Written Submissions, pg. 34, Manulife Group Benefits Attending Physician Statement, Applicant’s Written Submissions, pg. 915-916, and OCF-18 dated June 8, 2020 by Arunkumar Thankappan Pillai, Applicant’s Written Submissions, page 823.
10. 10IE Assessment Report, Dr. Goldstein dated February 18, 2020, Respondent’s Written Submissions, pg. 34.
11. 11O. Reg. 34/10, s. 33 (1) (6).
12. 1217-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).