Gutierrez v. Aviva Insurance Canada, 2023 CanLII 34456

Citation: Gutierrez v. Aviva Insurance Canada, 2023 CanLII 34456

Licence Appeal Tribunal File Number: 20-014853/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:

Diego Gutierrez

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Diego Gutierrez, Applicant Bambi Santiago, Paralegal

For the Respondent: Jessica Bacopulos, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Diego Gutierrez, the applicant, was involved in an automobile accident on September 26, 2018, 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 Aviva Insurance Canada, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue is:

i. Is the applicant precluded from disputing issues ii, iii and iv below because he failed to provide the insurer information requested to address the matters?

Background Information

3The applicant was removed from the MIG before the hearing; therefore, this issue is no longer in dispute – substantive issue i.

4The respondent approved substantive issues ii and iii within a Treatment Confirmation Form (“OCF-23”). The applicant submits that only $200.00 of his treatments have been paid to his treatment providers, as the respondent has asked for further information about the service providers and therefore, has unreasonably withheld these payments.

5The respondent also approved the payment of the physiotherapy services treatment plan – issue iv. However, the applicant requests an award for this benefit. The respondent also approved substantive issue vii, and this issue is no longer in dispute.

6The respondent argued that issues ii, iii and iv are not properly before the Tribunal, and therefore, no interest nor award could be pursued. The respondent also argued that issues ii and iii are not payable as the applicant’s service providers have not complied with the Schedule.

PRELIMINARY ANALYSIS

Preliminary Issue – Issues ii and iii – The Tribunal has jurisdiction to hear the issues

7The respondent argued that the Tribunal does not have the jurisdiction to hear issues ii and iii, as it has approved the treatment for the applicant but is awaiting documentation from the providers and therefore, the issues are not properly before the Tribunal, as seen in 18-007435 v. Aviva Insurance Canada, 2019 CanLII 43892 (ONLAT). In 18-007435, the Tribunal found that since the insurer had approved the disputed benefit, the Tribunal had no jurisdiction to hear the appeal.

8The applicant disagreed and submitted that based on section 280(1) of the Insurance Act, R.S.O, 1990, c.18 (“Insurance Act”), the Tribunal has jurisdiction to resolve disputes about injured people’s entitlement to accident benefits or how much that person is entitled to. The applicant submitted that this interpretation is consistent with the binding Court of Appeal of Ontario decision, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615. Stegenga confirmed that disagreements between insured people and insurance companies and their benefits under the Schedule, as well as the conduct of the insurance company, fall within the Tribunal’s jurisdiction.

9I did not find 18-007435 persuasive, as it dealt with disputed treatment where no records had been provided by the service provider, which is not the case here. The Tribunal must determine if the respondent’s requests under section 46.2 of the Schedule were replied to properly by the service provider and if the respondent has sufficient information to determine its liability under the Schedule. I find that the Tribunal has jurisdiction to hear this issue because this is a dispute involving accident benefits directly involving the applicant as outlined in paragraph 21 of Stegenga.

10I agree with the applicant’s arguments that the issue of the non-payment of the benefits between the service provider and the insurer falls within the jurisdiction of the Tribunal. This interpretation of the Schedule and the Insurance Act is consistent with Stegenga, and therefore, I will consider if the respondent was entitled to withhold payment from the applicant’s service provider based on sections 46.2 and 55 of the Schedule.

Preliminary Issue – Issues ii and iii –The Respondent is entitled to further information regarding supplementary goods and services in the amount of $400.00

11Section 46.2(1)2 of the Schedule states that an insurer can request a statutory declaration related to the circumstances of an invoice, including particulars or details of the goods and services provided. Section 55(1)3 of the Schedule provides that an applicant shall not apply to the Tribunal if the disputed issue relates to a respondent’s denial to pay an invoice because it requested information under section 46.2(1) and it cannot, acting reasonably, determine its liability for the benefit because the provider did not provide the requested information, in whole or in part.

12The applicant argued that the respondent has been effectively withholding his benefit by refusing to pay his service provider. The respondent does not deny it has withheld payment to the service provider. The respondent argued that based on section 46.2 of the Schedule, the service provider has not complied with the information it is required to give for the respondent to be able to determine its liability under the invoice. The respondent submitted that it requested several documents from the service provider in 2018, and the service provider did comply with some of these requests, albeit in 2020 and without a reasonable explanation for the delay.

13The respondent was not satisfied with the statutory declarations provided by the service providers, who all wrote: “provided goods and or services EXACTLY as listed on the referenced OCF-21 invoice (including dates, details of service provided to the Applicant”. The respondent submitted that the information provided was insufficient, as it still did not know the days and hours the provider worked at the facility and the duration (in minutes) for each good and/or service provided and relied on section 55(1)3 as to why the applicant could not proceed with the issues.

14The applicant disagreed with the respondent’s position and argued that he had provided the respondent with all the information it required to understand its liability via the applicant’s OCF-21s, the service provider sign-in sheets, the service providers’ treatment records and the above-mentioned statutory declarations.

15After reviewing the disputed documents, meaning the OCF-21s, the OCF-23, the sign-in sheets, and statutory declarations, I agree with the applicant’s position and allow the applicant to proceed based on section 55(2) of the Schedule. However, based on section 55(3), I order that the applicant may not seek interest or an award for these issues, given much of the delay related to the information was due to the service provider’s inaction, which neither the service provider nor the applicant explained. Moreover, as described below, I find that the service provider did not provide all of the information requested by the respondent. Therefore, I impose these terms and conditions on these issues in dispute.

16As a whole, the OCF-21s do provide the general information the respondent is seeking, meaning the dates and lengths of time the service provider worked with the applicant. I do see that the service provider did not provide the times of the applicant’s services, however, the respondent has not explained why it requires this specific information, or what prejudice it will suffer by not having this information. I see no nexus between the treatment times and the respondent’s ability to assess its liability for payment, as the treatment provider has provided sufficient evidence to show that the treatment was incurred. Therefore, I find that the service provider has complied with section 46.2 of the Schedule by providing the respondent with the information it required.

17However, I also agree with the respondent’s argument regarding the $400.00 for “supplementary goods and services” from the OCF-21 in the amount of $1,210.00. This item was never explained nor accounted for by the applicant or the service provider. I agree that the respondent is entitled to further information regarding what this billing amount represents and that this has not been provided.

18I find that the service provider has provided sufficient information regarding the OCF-18 and find it complied with section 46.2 of the Schedule and that the respondent shall pay the service provider for issue ii. The service provider has also provided sufficient information to the respondent under the Schedule for issue iii and the respondent shall provide payment of $1,210.00 minus $400.00.

19In terms of the remaining $400.00, I also acknowledge neither the service provider, nor the applicant explained the delay in providing the requested information, which has frustrated the respondent’s ability to assess its liability. Since the service provider has not explained the basis of these items/goods, I find that the service provider is not entitled to this payment until it provides the information requested by the respondent.

20In terms of the applicant’s arguments regarding the matter of 17-001098 v Aviva Insurance Canada, 2017 CanLII 63619 (ON LAT), I do not find that case persuasive, as that matter addressed additional information regarding an Assessment of Attendant Care Needs and expense forms. This is distinct from the subject matter in this case, where the service provider billed $400.00 for an undefined expense and failed to provide further explanation or reasons for the delay in providing information.

Preliminary Issue – Issue iv – The applicant may not pursue an award or interest

21Section 38(5) of the Schedule states that an insurer may refuse to accept a treatment and assessment plan (“OCF”) if the plan describes goods or services to be received or an assessment/examination to be conducted in respect of any period during which the insured person is entitled to receive goods or services under the MIG in respect to an impairment.

22The parties agree that the respondent has approved the disputed OCF-18 for $1,250.00 for physiotherapy services. However, the applicant wishes to pursue an award and interest based on the respondent’s delay in payment to the applicant.

23The respondent argued that the disputed treatment was approved up to $1,100.00, the MIG’s financial limit and then later fully approved based on the applicant’s updated medical records. The respondent submitted there was no basis for reviewing the applicant’s MIG determination and its original, partial denial of the OCF-18 was not subject to review based on section 38(5) of the Schedule.

24I find that the applicant may not pursue an award or interest regarding this issue. I agree with the respondent that section 38(5) of the Schedule applies. Since the OCF-18 was originally approved under the MIG’s financial limit, the respondent is not able to review or “change” its position regarding a benefit approved to the MIG’s limits until the respondent has removed the applicant from the MIG.

25Though I understand and empathize with the applicant’s position concerning being kept in the MIG, based on the Schedule, he is not entitled to an award or interest for this disputed benefit, as the respondent did not withhold or delay payment of the benefit to the applicant, since the respondent’s denial of the applicant’s OCF-18 was based on the information it had at the time of the denial.

SUBSTANTIVE ISSUES IN DISPUTE

26The substantive issues in dispute are:

i. Are the applicant's injuries predominately minor as in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to a medical benefit in the amount of $900.00 for goods and services provided by Pain Rehabilitation Clinic, denied on November 21, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $1,210.00 for goods and services provided by Pain Rehabilitation Clinic, denied on January 9, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $1,250.00 for physiotherapy services, denied on December 18, 2018?

v. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for physiotherapy services, denied on February 6, 2019?

vi. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a social work assessment, denied on February 6, 2019?

vii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, denied on June 20, 2019?

viii. Is the applicant entitled to a medical benefit in the amount of $2,300.00 for physiotherapy services, denied on June 20, 2019?

ix. Is the applicant entitled to $200.00 for the completion of a disability certificate, denied on May 6, 2020?

x. Is the applicant entitled to $200.00 for the completion of a disability certificate, denied on September 10, 2020?

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

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

RESULT

27The applicant is not in the Minor Injury Guideline (“MIG”).

28The applicant may proceed with issues ii and iii and the respondent shall pay the service provider for all but $400.00, related to the supplementary goods and services of the approved amount. I find the service provider has provided information via the statutory declarations and OCFs and has complied with the respondents’ requests for more information under the Schedule.

29The applicant may not pursue an award or interest for issue iv.

30The applicant is not entitled to the physiotherapy services, the social worker assessment, or the costs of the disability certificates, as he has not shown that they are reasonable and necessary.

31The applicant is not entitled to interest or an award, as none of the treatment plans are payable.

SUBSTANTIVE ISSUES ANALYSIS

Background

32The parties agree that the applicant had significant pre-existing conditions before the accident, as he was diagnosed with bipolar disorder and was involved in two prior accidents.

Physiotherapy services are not reasonable and necessary – issues v and viii

33To receive payment for a treatment and assessment plan under s. 14, 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.

34Since both disputed treatment plans deal with similar modes of therapy with similar goals, I will address issues v and viii together.

35The applicant submitted that his pre-existing injuries were aggravated by the accident, and therefore, the treatment plans are reasonable and necessary. The applicant relied on the disputed OCF-18s of Dr. San Bui, chiropractor.

36The respondent submitted the treatment plans for physiotherapy are not reasonable and necessary because of the accident, and that the applicant had not met his evidentiary burden of showing this. The respondent relied on the IEs of Dr. Chris Boulias, physiatrist of March and May 2019, where the doctor found and maintained that the applicant did not require further physical therapy for his accident-related injuries.

37The applicant relied on Dr. Boulias’ IE of March 2019, where the doctor noted that the applicant had a neurological impairment. The applicant also relied on the IE of Dr. Shulamit Mor, psychologist, who also noted the applicant’s pain complaints, and that physical therapy helped his pain.

38The applicant further relied on the report of Dr. Melody Nguyen, physiatrist, of September 2020, where the doctor recommended the applicant attend a chronic pain program and acupuncture.

39I find that the OCF-18s are not reasonable and necessary. I find that the applicant has not met his evidentiary burden of showing that the dispute OCF-18s are reasonable and necessary. I agree with the respondent’s position that the only evidence the applicant has adduced that spoke directly to the disputed OCF-18s were the documents themselves from Dr. Bui. These were not supported by contemporaneous medical evidence such as clinical notes and records from the applicant’s family doctor or treating practitioners, that specially explained why the applicant needed physiotherapy as a result of the accident. I did not find Dr. Nguyen’s findings persuasive, as they did not specifically recommend the applicant attend more physiotherapy.

40The applicant also failed to provide any evidence to rebut the findings of Dr. Boulias, or specifically address how his accident exacerbated his previous injuries.

41Though the applicant relied on several decisions addressing when treatment plans are reasonable and necessary, these decisions did not deal with an applicant who has failed to provide supporting medical records that address which injuries an applicant suffers as a result of an accident, and therefore were not persuasive.

42Therefore, I find that these treatment plans are not reasonable and necessary.

Social Work Assessment is not reasonable – issue vi

43The applicant submitted the social work assessment recommended by Dr. Bui was reasonable and necessary and relied on the disputed OCF-18 itself, which noted the goals, barriers to recovery and treatment to be provided.

44The respondent argued that the social work assessment is not reasonable and necessary. The respondent relied on Dr. Mor’s Addendum IE of May 2019, where the doctor did not find the disputed OCF-18 reasonable and necessary and instead recommended the applicant obtain the services of a psychiatrist or experienced, clinical psychologist due to the applicant’s complicated, pre-accident medical history.

45The respondent additionally argued that the applicant has not shown that his psychological and emotional impairments were caused by the subject accident and has also failed to meet his evidentiary burden.

46I find that the applicant is not entitled to the social work assessment because he has not met his evidentiary burden to show that this assessment is reasonable and necessary. Similar to my findings regarding the requested physiotherapy services, I would have expected the applicant to provide contemporaneous medical evidence, beyond the disputed OCF-18 of a chiropractor, to support his need for a social work assessment, such as the clinical notes and records from the applicant’s treating clinic.

47Though the applicant visited his health clinic on many occasions in 2019 and 2020, reporting his psychological issues, none of the doctors specifically recommended that the applicant receive a social worker assessment. Instead, the doctors at the applicant’s clinic supported the applicant being referred to a psychiatrist in 2020. This position is supported by Dr. Mor’s findings, and the respondent’s argument regarding the applicant requiring the services of a psychiatrist and not a social worker. Therefore, I find the respondent’s arguments to be persuasive and find that the applicant is not entitled to the disputed benefit.

Cost of Disability Certificates are not reasonable and necessary – Issues ix and x

48Since issues ix and x both relate to the costs of disability certificates (“OCF-3”s), I will address them both at once.

49Section 25(1)1 of the Schedule states that an insurer shall pay for reasonable fees charged for preparing an OCF-3 if required under sections 21, 36 or 37 of the Schedule.

50The applicant sought payment for an OCF-3 dated April 8, 2020 and authored by Dr. Bui. Dr. Bui found that the applicant suffered a complete inability to carry on a normal life, and a substantial inability to perform the housekeeping/home maintenance he performed before the accident. The applicant also sought payment for a second OCF-3, this time authored by Mohit Rastogi, physiotherapist, and dated August 31, 2020, which confirmed Dr. Bui’s findings.

51The applicant argued that he was required to provide these forms to inform the insurer about his injuries and changes to said injuries and are therefore reasonable and necessary.

52The respondent submitted that based on section 25(1)1 of the Schedule, an insurer must only pay for an OCF-3 if a specified benefit is being disputed, which is not the case. The respondent also noted that the two disputed OCF-3 did not provide the respondent with any new or additional information to assist with its adjudication of the applicant’s case, as the applicant had provided the respondent with an initial, approved, OCF-3. As the respondent submitted it did not request updated OCF-3s from the applicant, it submitted they are not reasonable and necessary.

53I find that the applicant is not entitled to payment for the two disputed OCF-3s. Though I appreciated the applicant’s argument, I fail to understand why he chose to obtain updated OCF-3s when he was not pursuing a specified benefit, nor had his impairment significantly or drastically changed since his first OCF-3. I can understand that the applicant would want to keep the respondent updated regarding changes in his medical conditions, but I find that this would be more appropriately confirmed via his health care providers’ clinical notes and records. Therefore, I find that the disputed OCF-3s are not reasonable and necessary.

54The applicant relied on the matter of 17-002589 v Wawanesa Mutual Insurance., 2018 CanLII 83505 (ON LAT). However, I did not find this persuasive as this matter addressed an applicant who suffered new impairments requiring further treatment, which was not the case here.

The Applicant is not entitled to Interest

55Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. As I have found that the applicant is not entitled to any of the disputed benefits, he is not entitled to interest.

The Applicant is not entitled to an Award

56The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

ORDER

57The service provider has provided the respondent with sufficient information regarding issues ii and iii except for the amount of $400.00.

58The applicant is not entitled to physiotherapy services in the amounts of $2,000.00 and 2,300.00.

59The applicant is not entitled to the social work assessment in the amount of $2,200.00.

60The applicant is not entitled to $200.00 for the completion of a disability certificate dated April 8, 2020.

61The applicant is not entitled to $200.00 for the completion of a disability certificate dated August 31, 2020.

62The applicant is not entitled to interest.

63The applicant is not entitled to an award.