Villano v. Aviva Insurance Company of Canada, 2023 CanLII 30774

Citation: Villano v. Aviva Insurance Company of Canada, 2023 ONLAT 20-009960/AABS

Licence Appeal Tribunal File Number: 20-009960/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:

Lani Villano

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Rajwant Singh Bamel, Counsel

For the Respondent: Nathan M. Fabiano, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lani Villano (the “applicant”) was involved in a motor vehicle accident on January 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of Canada (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that she suffers from physical injuries as a result of the accident, which occurred when she was struck by a vehicle while crossing the street pushing a baby stroller. She claims entitlement to two treatment plans for chiropractic services and assistive devices. She is also seeking interest and a special award.

3Aviva argues that the treatment plans are not reasonable and necessary, and has added a request for costs in its submissions.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to $3,207.25 for chiropractic services, recommended by ProMed Rehab in a treatment plan/OCF-18 dated July 5, 2019?
2. Is the applicant entitled to $1,095.00 for other assistive devices, recommended by ProMed Rehab in a treatment plan/OCF-18 dated August 31, 2019?
3. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the respondent entitled to $500.00 in costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019) (the “Rules”)?

RESULT

5I find that:

i. The treatment plan for $3,207.25 dated July 5, 2019 is reasonable and necessary. ii. The treatment plan for $1,095.00 dated August 31, 2019 is reasonable and necessary. iii. The applicant is entitled to interest on any incurred amounts with regard to the two treatment plans noted above. iv. The applicant is not entitled to an award. v. The respondent is not entitled to costs.

PROCEDURAL ISSUE

6I am allowing the addition of a request for $500 in costs to the issues in dispute, which was requested by the respondent in its written submissions.

7Rule 19.1 of this Tribunal provides that a party may request costs where it is believed that another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 sets out that such a request may be made in writing or orally at a case conference or hearing, at any time before the decision or order is released, and Rule 19.3 requires that the amount being sought is specified. Further, Rule 19.4 requires that a request for costs is to be accompanied by the reasons for the request.

8In this instance, Aviva is seeking costs of $500.00 because the applicant withdrew a non-earner benefit (“NEB”) issue in dispute “a few hours” before the virtual component of this hearing (this matter was originally scheduled to proceed as a hybrid hearing with virtual and written components) was to begin (email correspondence shows that the NEB issue was withdrawn on April 25, 2022, the day before the virtual hearing was scheduled to start on April 26, 2022). Aviva is claiming that it incurred costs for the virtual hearing and submits that it should be entitled to $500.00 to reflect “time wasted in preparation for the oral component of the hearing” and that the “timing of the withdrawal smacks of vexatiousness and is an abuse of process.”

9In reply submissions, the applicant objects to the addition of the issue of costs. She argues that the costs request should have been added earlier, to allow for a more fulsome response. She further notes that the withdrawal of the NEB issue was done in good faith to narrow the issues in dispute and allow the matter to proceed solely as a written hearing.

10I find that the respondent has followed the provisions of Rule 19 by submitting its costs request before any decision has been released, by specifying the amount being requested, and by outlining the particulars of the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith. Also, the applicant had the opportunity to respond to the costs request in her reply submissions, and did so, so she cannot claim to have been unduly prejudiced.

11As a result, I am adding the request for $500.00 in costs to the issues in dispute.

ANALYSIS

Are the treatment plans reasonable and necessary?

12I find that the applicant has met her burden and demonstrated that the two treatment plans in dispute are reasonable and necessary.

13To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

14In this case, the applicant relies on the hospital admission records from the day of the accident, clinical notes and records (“CNRs”) of Dr. Jeyla Chen, general practitioner, a Disability Certificate/OCF-3 completed by Dr. Tasha Thavarajah, chiropractor, and dated March 13, 2019, and a chronic pain consultation report completed by Dr. Dimitri Louvish, general practitioner, and dated October 23, 2020.

15The applicant further relies on the treatment plans/OCF-18s in dispute, the specifics of which are as follows:

i. The OCF-18 dated July 5, 2019 was completed by Meenakshi Sharma, physiotherapist. It includes 10 sessions each of chiropractic, massage therapy, and active therapy, along with reassessment and planning, research, and consultation fees. Its goals are pain relief and increasing the applicant’s range of motion. ii. The OCF-18 dated August 31, 2019 was completed by Dr. Thavarajah and includes recommendations for a handheld thumper/massager, a queen-size foam memory mattress topper, a theraband with handles, a foam roller, and an exercise mat. Its goals listed include pain reduction and a return to the activities of daily living.

16I prefer the medical evidence of the applicant, which tells a largely consistent story where she sustained whiplash, injuries to both shoulders, sprain and strain to her thoracic and lumbar spine, and injuries to her knees as a result of being struck by a vehicle while crossing the road as a pedestrian and pushing a stroller. The applicant was transported by ambulance to North York General Hospital from the scene of the accident, where she was assessed with left lateral neck pain along with pain in both shoulders and both hands. The applicant sought treatment for neck and back pain, along with numbness in both shoulders, from Dr. Chen on January 18, 2019, February 5, 2019, and March 19, 2019, and was recommended physiotherapy. At the March 19, 2019 appointment, the applicant reported that she was attending physiotherapy at ProMed Rehab one or two times per week. Additionally, the OCF-3 notes the same injures as listed above, and also that the applicant suffers from a complete inability to carry on a normal life with the time of the disability expected to last more than 12 weeks.

17Further strong evidence was provided by Dr. Louvish’s thorough chronic pain assessment report, written as a result of his in-person examination of the applicant on October 13, 2020. Dr. Louvish concluded that the applicant suffered cervical whiplash myofascial injury, left shoulder post-traumatic impingement syndrome, right shoulder myofascial injury, thoracic spine myofascial injury, lumbar spine myofascial injury, and left and right knee myofascial injury that appeared directly related to the subject accident. Dr. Louvish found both treatment plans in dispute to be reasonable and necessary for the goals of pain relief and to address the applicant’s functional limitations as a result of her injuries and loss of range of motion. He writes more about the need for physical therapy (he endorses the recommendations in the treatment plan dated July 5, 2019) than the assistive devices recommended in the August 31, 2019 plan. But Dr. Louvish notes specific issues that directly relate to the assistive devices, such as the applicant’s sleep difficulty due to accident-related pain (the mattress topper), and the recommendation for the applicant to engage in more exercise programs and therapy (the massager, the theraband, the foam roller, and the exercise mat) to assist with pain relief. Overall, I see no reason to dispute the doctor’s assessments and recommendations, as they correlate with the complaints of the applicant, the CNRs, and the applicant’s attendance at physiotherapy (which she reported to Dr. Louvish to have been beneficial, at least for limited periods of time, in managing her pain).

18I do not find the respondent’s arguments about the accident being exaggerated by the applicant to be compelling. The respondent rightly points out the absurdity of the accident description in the applicant’s submissions, which has the airbags somehow flying out of the vehicle and striking the applicant in front of the car. But the respondent then moves into allusions about the nature of the accident itself that seem intended to raise doubts about causation without formally making this claim, as well as to question the credibility of the applicant. At any rate, the respondent’s allegation that the applicant’s baby stroller may have sustained much of the impact of the oncoming vehicle and that the applicant herself was just dragged forward or down by the collision is immaterial. Either way, the applicant sustained injuries during this accident, and the objective medical reports support the applicant’s claims. As a result, I have no reason to doubt the applicant’s credibility beyond the unlikely accident description (which is found solely in the written submissions provided by the applicant’s counsel, and is not endorsed by the applicant in the medical evidence).

19I assign limited weight to the respondent’s medical evidence, a series of insurer examination (“IE”) assessments and paper reviews conducted by Dr. Alborz Oshidari, physiatrist, that resulted in reports dated May 14, 2019, July 30, 2019, and January 26, 2021. Although the respondent cited Dr. Oshidari’s May 14, 2019 report as the main reason to deny both of the treatment plans in dispute, in correspondence dated August 20, 2019 and September 19, 2019, Dr. Oshidari does not actually comment on the two plans. This examination and report are focused on the withdrawn NEB claim, so the majority of his comments relate to the physician’s views on the applicant’s ability to carry on a normal life, the standard test in determining NEB eligibility. As a result, I do not find Dr. Oshidari’s report entirely relevant to the issues before me.

20Furthermore, I agree with the applicant that Dr. Oshidari’s conclusions in the May 14, 2019 report somewhat support the treatment plans in dispute. Dr. Oshidari notes range of motion at 40-70 per cent of normal in the lumbosacral and cervical spine, along with 30 per cent normal extension and lateral bending. Shoulders are also noted to be at 90 per cent normal range of motion. Granted, Dr. Oshidari qualifies these observations with a later comment in his report that the applicant is pain-focused and self-limiting in her range of motion testing. He also states his belief that the applicant’s symptoms seem “somewhat disproportionate to the nature of the accident.” But he does not challenge the applicant’s symptoms of pain, or that she is experiencing difficulties as a direct result of the accident, writing that, “There is no doubt, she continues to experience some discomfort and pain in the spine.” Dr. Oshidari’s acceptance of the applicant’s ongoing pain makes it difficult to give his report much weight with regard to the treatment plans, as each features pain relief as a primary goal.

21For the same reasons, I assign limited weight to the IE occupational therapy assessment report of Ron Findlay, occupational therapist, whose report is also dated May 14, 2019. As with Dr. Oshidari, the primary focus of Mr. Findlay’s assessment is the withdrawn NEB matter. The majority of Mr. Findlay’s observations deal with standard in-home observations, strength tests, and range of motion tests geared to assess if the applicant is able to carry on a normal life. He finds that the applicant displays mostly normal range of motion, and also that she is displaying pain-focused and self-limiting behaviour, similar to what was opined by Dr. Oshidari. Still, Mr. Findlay does not assess the treatment plans before me, which leaves his report of minimal value.

22I reject the respondent’s submission that its medical evidence should be given “vastly” more weight than the applicant’s evidence, as her medical evidence was provided by Ms. Sharma and Dr. Louvish, each of whom had a pecuniary interest in “providing overblown injury information as to gain further payments for treatments at their facilities.” No evidence is provided to support such allegations.

23Accordingly, I find that the applicant has met her burden and demonstrated that the treatment plans in dispute are reasonable and necessary. I find that she is entitled to payment for the two denied treatment plans, along with interest for any incurred amounts of these plans pursuant to s. 51 of the Schedule.

Is the applicant entitled to an Award?

24I find that the applicant is not entitled to an award.

25Section 10 of Regulation 664 states that 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 that an award is justified where the delay or withholding of benefits is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

26The onus is on the applicant to prove, on a balance of probabilities, that Aviva’s conduct meets this criteria. In this case the applicant submits that Aviva did not properly assess all of the medical evidence at its disposal and relied on its IE assessments (namely those conducted by Dr. Oshidari and Mr. Findlay) to the point where it did not adjust the claim in good faith. The applicant further submits that this lack of attention to the medical evidence resulted in behaviour that is excessive, imprudent, stubborn, inflexible, unyielding, and immoderate.

27Aviva argues that the award claim is frivolous and vexatious and accuses the applicant of only raising it to “sidestep her burden of proof” regarding the treatment plans in dispute. Aviva further claims that it did assess all medical evidence and that its decisions with regard to the adjustment of this claim were made on the basis of the available evidence.

28While I do not agree with Aviva’s assessment of the award claim itself, I do find that the applicant has not proven the insurer to have behaved in an unreasonable manner. Aviva ordered numerous IE assessments of the applicant and followed up with paper reviews, which indicates to me that the insurer applied proper due diligence. Although I agree with the applicant that the respondent’s reliance on IE reports commissioned to address an NEB claim to deny treatment plans is an unconventional approach—and also an unsuccessful one here—such a course of action does not merit the sanction of a special award.

29For the reasons noted above, the applicant is not entitled to an award.

Is the respondent entitled to costs?

30I find that the respondent is not entitled to costs.

31As noted above, Rule 19 of this Tribunal’s Rules allows latitude for how and when a party can seek costs. The respondent applied that latitude here in adding a request for $500.00 in costs to its written submissions, claiming that the applicant displayed vexatious behaviour when she withdrew her NEB claim and as a result requested that the remaining issues in dispute be handled via this written hearing. Aviva primarily argues that costs are due because the withdrawal came on April 25, 2022, the day before the start of the virtual component of the original hybrid virtual/written hearing on April 26, 2022, and as a result the insurer had already incurred the cost of having its counsel prepare for this proceeding.

32In her reply submissions, the applicant objects to the costs issue being added and further argues that she should not be punished for withdrawing an issue in dispute. She also compares this withdrawal to the last-minute approval of treatment plans by insurers immediately before hearings are to commence, which she argues is commonplace.

33I agree with the applicant. Late withdrawals, approvals, and even full settlements at the last moment before the start of a virtual hearing are a regular occurrence. Punishing an applicant for withdrawing an issue, even the day before a hearing is scheduled to begin, would also go against the consumer protection basis of the Schedule.

34For the above reasons, the respondent’s request for costs is denied.

ORDER

35I find that:

i. The applicant is entitled to $3,207.25 for chiropractic services, recommended by ProMed Rehab in a treatment plan/OCF-18 dated July 5, 2019. ii. The applicant is entitled to $1,095.00 for other assistive devices, recommended by ProMed Rehab in a treatment plan/OCF-18 dated August 31, 2019. iii. The applicant is entitled to interest on any incurred and overdue payment of benefits regarding the above treatment plans, pursuant to s. 51 of the Schedule. iv. The respondent is not liable to pay an award under s. 10 of Regulation 664. v. The respondent is not entitled to costs of $500.00.