Hussain v. Aviva General Insurance, 2023 CanLII 32802

Citation: Hussain v. Aviva General Insurance, 2023 ONLAT 19-012347/AABS

Licence Appeal Tribunal File Number: 19-012347/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:

Asif Hussain

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Kristofer Angle, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Asif Hussain, the applicant, was involved in an automobile accident on January 2, 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 General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2In its submissions, the respondent raises the issue of deficiencies in the applicant’s initial submissions, specifically, his failure to provide the OCF-18 forms for the disputed treatment plans and his failure to address the reasonableness and necessity of the plans. The respondent submits that the applicant should be prohibited from submitting this evidence in his reply submissions, as this would be new evidence which reasonably should have been included with his initial submissions.

3In his reply submissions, the applicant argues that the reasonableness and necessity of the disputed treatment plans does not need to be proven, as all of the denial notices and notices of examination were deficient pursuant to s. 38(11) and s. 44(5) of the Schedule. However, I note that in his reply, the applicant has now included the missing OCF-18s and provided some arguments with respect to the reasonableness and necessity of the treatment plans.

4Although I agree with the respondent that the applicant has effectively split his case as per the principles set out in the Court of Appeal decision Allcock Laight & Westwood Ltd. ¹, for the sake of completeness, I have considered the OCF-18s and arguments relating to the reasonableness and necessity of the plans. With respect to the OCF-18s, it is in the interest of fairness to admit the treatment plans in question, notwithstanding that they were filed late. The treatment plans form the basis of the claims that are in dispute. Not allowing the applicant to rely on these OCF-18s would undermine his ability to make his case before the Tribunal. There is little, if any, prejudice to the respondent if I consider these treatment plans since they are not “new evidence” in that the respondent has previously been given these plans and has in fact made decisions to deny or partially approve the benefits based on these plans.

5I also note that in its submissions, the respondent provided its multidisciplinary insurer’s examination report and sufficient medical evidence for me to assess the reasonableness and necessity of the proposed treatment plans. As such, I find that the respondent would not be prejudiced by the applicant’s submissions on the reasonableness and necessity of the plans. Therefore, I have considered the applicant’s reply submissions in full, although as per my reasons below, even considering the OCF-18s and the applicant’s newly raised arguments, I still do not find that the applicant has met his onus to prove that the disputed treatment plans for chiropractic treatment and an attendant care assessment are reasonable and necessary.

6I further note that in his reply submissions, the applicant raised for the first time a request for an award under s. 10 of Regulation 664. As the issue of an award was not raised in the application, in any of the case conferences or the motion hearing, the respondent had not provided any submissions on this issue. This late request would be a breach of procedural fairness. The respondent does not have an opportunity to respond to the applicant’s submissions and raising a new issue as part of reply submissions is improper. Therefore, the issue of an award will not be considered as part of this written hearing.

ISSUES

7The issues in dispute are²:

i. Is the applicant entitled to $300.52 ($2,094.15 less $1,783.63 approved) for psychological treatment recommended by Physio Fix and Fitness in an OCF-18 dated February 7, 2019?

ii. Is the applicant entitled to $299.22 ($3,699.44 less $3,400.22 approved) for psychological treatment recommended by Physio Fix and Fitness in an OCF-18 dated July 3, 2019?

iii. Is the applicant entitled to $4,798.38 for chiropractic treatment recommended by Physio Fix and Fitness in an OCF-18 dated June 19, 2019?

iv. Is the applicant entitled to $2,045.88 for an attendant care/Form 1 assessment recommended by Ali Habash in an OCF-18 dated July 17, 2019?

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

RESULT

8I find that:

i. The applicant is entitled to the outstanding balances of the OCF-18s for psychological treatment, plus interest in accordance s. 51 of the Schedule; and

ii. The applicant is not entitled to the OCF-18s for chiropractic treatment and an attendant care assessment.

ANALYSIS

Entitlement to treatment plans

9To 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.

10An applicant may also establish entitlement to payment of a treatment plan, by showing that the respondent failed to comply with the notice requirements in s. 38(8) or s. 44(5) of the Schedule and that the goods and services were incurred during the period of non-compliance.

11The applicant argues that all of the treatment plans in dispute are payable, as the respondent did not comply with its statutory notice requirements.

The applicant is entitled to the outstanding balance of the OCF-18 dated February 7, 2019 for psychological treatment

12The applicant submitted an OCF-18 for a psychological assessment and treatment dated February 7, 2019. The respondent initially denied this treatment plan by way of an Explanation of Benefits (“EOB”) dated February 15, 2019. I agree with the applicant that this notice does not comply with s. 38(8) of the Schedule. The EOB stated only that there was “no supporting medical documentation to substantiate your removal from the Minor Injury Guideline” and that once sufficient medical documentation was received, the plan would be reassessed.

13I find that these reasons do not provide any details about the applicant’s condition that formed the basis of the respondent’s decision or any specific details regarding the information the respondent further required about the applicant’s condition. The notice simply states, in very generic terms, the respondent’s conclusion that the applicant was not removed from the Minor Injury Guideline. I agree with the applicant that this correspondence fails to discharge the respondent’s obligation to provide a “medical and any other reason” in accordance with the principles outlined in 17-003774/AABS. v. Aviva Canada Inc. 2016 CanLII 84051 (ON LAT) (“B.H. v Aviva”).

14Although the respondent cited two decisions³ where such language was found to comply with the notice requirements of s. 38, I note that both of these decisions predate B.H. v. Aviva and do not consider the Tribunal’s subsequent consideration of the need for medical reasons. As such, I do not find the decisions cited by the respondent to be as persuasive and prefer the reasoning of Executive Chair Lamoureux in B.H. v. Aviva.

15However, I find that the respondent’s subsequent correspondence cured its non-compliance with s. 38(8). By way of two EOBs – an undated EOB and an EOB dated October 25, 2019 - the respondent partially approved $1,783.63 of the OCF-18. It further stated that it did not agree to pay for the outstanding amount of $300.52, as it consisted of goods and services relating to planning, preparation, or brokerage fees, which are included in the $200.00 maximum fee permitted for an OCF-18 completion.

16I find that the reasons provided by the respondent were clear, succinct and sufficient enough to be understandable by an unsophisticated person. The respondent clearly stated what goods and services it was partially approving and which goods and services it would not pay for and why.

17Given that the respondent cured its previous defective notice, pursuant to s. 38(11)2 of the Schedule, the applicant is entitled to payment for the outstanding portion of the OCF-18 that was incurred during the period of non-compliance. As the outstanding balance related to additional fees for the completion of the OCF-18 form, I am assuming that these fees were incurred at the time of the completion of the OCF-18.

18As such, I find that the applicant is entitled to the outstanding balance of $300.52 for the OCF-18 in dispute.

The applicant is entitled to the outstanding balance of the OCF-18 dated July 3, 2019 for psychological treatment

19The applicant claims entitlement to the outstanding balance of the OCF-18 submitted on July 8, 2019, which proposed 12 sessions of psychotherapy treatment in addition to fees for planning, preparation and documentation support. In his submissions, the applicant did not provide a copy of the OCF-18, however, the respondent provided a copy of the partially approved OCF-18 with its submissions, noting that the OCF-18 had been partially approved on the same day it had been submitted, for $3,400.00 out of requested $3,699.44.

20With respect to the reasons for the partial approval, the applicant submits an undated EOB, which stated that while the respondent agreed to pay for the psychotherapy treatment, it would not pay for goods and services relating to planning, preparation, or brokerage fees, which are considered to be in the maximum $200.00 cost of the OCF-18 completion.

21Neither the applicant nor the respondent confirmed when the undated EOB had been sent to the applicant. Therefore, depending on when this EOB was received, there may have been a period of non-compliance with s. 38(8), if an explanation for the partial approval was not provided by the respondent on July 8, 2019. However, the applicant does not dispute that at some point he received this undated EOB, at which point any potential non-compliance would have been cured. I find that the reasons for the partial approval were compliant with s. 38(8) of the Schedule.

22Therefore, the applicant is entitled to payment for the outstanding portion of the OCF-18 that was incurred during the period of non-compliance. Given that the outstanding balance related to additional fees for the completion of the OCF-18 form, I am assuming that these fees were incurred at the time of the completion of the OCF-18. As such, I find that the applicant is entitled to the outstanding balance of $299.22 for the OCF-18 dated July 3, 2019.

The applicant has not established entitlement to the OCF-18 for chiropractic treatment

23The applicant submitted an OCF-18 for physical therapy in the amount of $4,798.38. It comprised of 18 sessions of physiotherapy treatment, in addition to a number of assistive devices. The applicant argues that he is entitled to the treatment plan in dispute, as the insurer failed to comply with its obligation to provide proper notice and medical reasons under s. 38(8). The respondent contends that both of its notices dated June 27, 2019 and August 23, 2019 are in compliance with s. 38(8) and s. 44(5) of the Schedule. The respondent further submits that the applicant has not provided any evidence or submissions that the treatment plan was incurred, or reasonable and necessary.

24I find that the respondent’s Notice of Examination (“NOE”) dated June 27, 2019 and correspondence dated August 23, 2019 complied with s. 38(8) and s. 44(5) of the Schedule.

25The NOE dated June 27, 2019 requests the applicant’s attendance at an insurer’s examination (“IE”). The medical reason provided for the IE, was that there appeared to be pre-existing or concurrent medical conditions that could affect the applicant’s care, treatment and prognosis. Although the applicant submits that this language lacks context and is “likely boilerplate”, I find that these reasons effectively communicate the respondent’s reasons for requesting the IE. In his own submissions, the applicant makes the argument that his pre-existing symptoms were exacerbated by the accident. This highlights the need for clarity on the causation of the applicant’s impairments. The reasons provided for the requested IE, including the reference to pre-existing conditions, appear to be a principled rationale, based fairly on the applicant’s file. I find that the NOE is clear and sufficient enough for the applicant to make an informed decision about whether to accept or dispute the decision.

26Further, I agree with the respondent that even if the June 27, 2019 NOE was non-compliant, the final denial dated August 23, 2019 would have cured any previous deficiency. This correspondence enclosed the multidisciplinary IE assessment and stated the findings of the applicable assessors. A clear medical reason is provided, namely, that the assessor has determined that the applicant sustained uncomplicated soft tissue injuries to his neck, chest, left shoulder, back and right wrist. The applicant did not provide any submissions as to how this correspondence did not comply with s. 38(8) of the Schedule, nor has the applicant provided any submissions or evidence as to whether the treatment plan was incurred.

27Finally, I find that the applicant has failed to demonstrate that the proposed treatment is reasonable and necessary.

28The only evidence provided by the applicant as to the reasonableness and necessity of the physiotherapy treatment, is the OCF-18 itself and the progress note authored by Dr. Fawad Malik, chiropractor. Dr. Malik described the applicant’s ongoing symptoms and moderate improvement since beginning therapy. Dr. Malik noted the applicant’s ongoing functional limitations and conducted range of motion and diagnostic testing which revealed ongoing restrictions and pain. He recommended another course of therapy to assist with pain relief, strengthening and movement and to support the applicant in a return to work.

29The respondent conducted two IE assessments. The neurology IE conducted by Dr. Verity John found that the applicant had not sustained a neurological injury as a result of the accident. The orthopaedic IE assessment conducted by Dr. Louis Weisleder, found that the applicant sustained only uncomplicated soft tissue injuries and had reached maximum medical improvement. Dr. Weisleder noted the applicant’s pre-existing history of impairments including rotator cuff tendinitis, myofascial and neuropathic pain, carpometacarpal osteoarthritis of his right wrist, and degenerative disc disease and facet arthritis. Dr. Weisleder concluded that the applicant had already been appropriately assessed and treated for the accident-related injuries.

30When comparing the respondent’s IE assessments to the progress note of Dr. Malik, I prefer the IE assessments of Dr. John and Dr. Weisleder. Both of the respondent’s IE assessors reviewed the applicant’s medical file, including diagnostic imaging and the clinical notes and records of the family physician. As a result, Dr. Weisleder concluded that the documentation supported pre-existing left shoulder and right wrist/hand pain, degenerative disc disease and facet arthritis. In contrast, Dr. Malik’s progress note did not reference any prior medical documentation and has limited references to the applicant’s pre-existing medical history. Dr. Malik only notes that the accident exacerbated pre-existing symptoms especially his right wrist. Given the applicant’s extensive pre-accident medical history, I find it persuasive that the respondent’s IE assessors considered this medical information when rendering their opinion.

31The applicant does not direct me to any other medical evidence to support the reasonableness and necessity of the proposed treatment. In his submissions, he notes that his family physician, Dr. Saeed had recommended physiotherapy in January 2019, which the applicant then attended. However, he does not direct me to any contemporaneous evidence that Dr. Saeed continued to recommend such treatment in June 2019. Given the focus in the applicant’s submissions on the sufficiency of the respondent’s denials and the limited submissions and evidence on the reasonableness and necessity of the proposed treatment, I find that the applicant has not met his onus to prove entitlement to the OCF-18 in dispute.

The applicant has not established entitlement to the OCF-18 for an attendant care assessment

32The applicant submits that he is entitled to the cost of the OCF-18 for an attendant care assessment, due to the respondent’s non-compliance with s. 38(8) and s. 44(5) of the Schedule. The respondent asserts that even if its initial denial did not comply with s. 38(8) of the Schedule, the OCF-18 would still not be payable, as the applicant had incurred the assessment prior to his submission of the OCF-18.

33I agree with the respondent. Section 38(2) of the Schedule is clear that an insurer is not liable to pay for an expense relating to an assessment, if it was incurred prior to the submission of the OCF-18, unless it fell under one of the listed exceptions in s. 38(2)(c). The applicant did not provide any submissions or evidence that the attendant care assessment fell under one of the enumerated grounds in s. 38(2)(c) and I do not see that any of the exceptions would be applicable in this case. This means that the applicant was required to submit the OCF-18 prior to the assessment being incurred.

34In terms of the interplay between s. 38(2) and s. 38(8) of the Schedule, the respondent relies on the Tribunal decision Zeitoun v Royal & Sun Alliance, 2020 CanLII 103701 (ON LAT). In this decision, the Tribunal found that the general requirement in s. 38(2) that a plan be submitted before the expenses were incurred, overrode the penalty clause of insufficient notice in s. 38(11). The Tribunal noted that if an insurer was not liable to pay for a treatment plan under the Schedule, the sufficiency of the notice of denial would be of no consequence. While not binding upon me, I find the reasoning in Zeitoun to be persuasive.

35The applicant did not dispute that the treatment plan was incurred prior to the OCF-18 being submitted and did not submit any caselaw to refute the assertion that s. 38(2) of the Schedule overrules the notice provisions of s. 38(8). The only argument the applicant puts forth is that the respondent’s position would be tantamount to finding that the applicant “waived” the respondent’s obligation to provide him with sufficient notice. The applicate cites M.B. v Aviva in support of his position. I do not find the applicant’s submissions to be persuasive on this point. In the paragraph of M.B. v Aviva cited by the applicant, the Tribunal considered a situation where an applicant’s previous agreement to attend an IE did not waive the respondent’s obligation to provide sufficient notice under s. 55(1)2 of the Schedule. I find that this is distinguishable from the case at hand, which did not involve such an informal agreement between the parties, but rather, a statutory requirement under the Schedule.

36For these reasons, I find that the applicant has not led sufficient evidence to establish that he is entitled to the attendant care assessment.

Interest

37The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the outstanding balances of the OCF-18s for psychological treatment.

CONCLUSION

38For the reasons outlined above, I find that:

i. The applicant is entitled to the outstanding balances of the OCF-18s dated February 7, 2019 and July 3, 2019, plus interest in accordance s. 51 of the Schedule; and

ii. The applicant is not entitled to the OCF-18s for chiropractic treatment and an attendant care assessment.

Footnotes

1. 1Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd. Patten and L.A. Corney Commercial Deliveries Ltd. v. Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA)
2. 2At a motion hearing held on September 8, 2021, the applicant withdrew the issue of income replacement benefits.
3. 3Augustin v. Unifund Assurance Co., [2013] O.F.S.C.D. No. 211 and Applicant v. Security National Insurance Company [2017] CanLII 62185 (ONLAT)