Spano v. Aviva Insurance Canada, 2023 CanLII 58509

Citation: Spano v. Aviva Insurance Canada, 2023 ONLAT 20-007519/AABS

Licence Appeal Tribunal File Number: 20-007519/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:

Giuseppe Spano Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Giuseppe Spano, Applicant Erin Neal, Counsel

For the Respondent: Suzanne A Clarke, Counsel

HEARD: By written submissions

OVERVIEW

1Giuseppe Spano (the “applicant”) was involved in an automobile accident on March 22, 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 the resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400 per week from August 29, 2018, to date and ongoing submitted March 22, 2018, and denied August 29, 2018?

ii. Is the applicant entitled to an attendant care benefit in the amount of $3,106.71 per month from September 7, 2018, to date and ongoing recommended by Complete Rehab submitted March 22, 2018, and denied September 7, 2018? Item # 7 on the application form relates to this claim as it sets out a claim for $7,680 for the amount of the incurred attendant care provided by Capable Hands submitted January 1, 2019 and denied January 15, 2019.

iii. Is the applicant entitled to $2,625.11 for the cost of physiotherapy and massage recommended by Vaughan Wellness Centre submitted on July 17, 2018, and denied on July 17, 2018?

iv. Is the applicant entitled to the cost of an examination for $2,680 for an orthopaedic assessment recommended by Complete Rehab submitted August 14, 2018, and denied September 18, 2018?

v. Is the applicant entitled to the cost of an examination for $2200 for a Functional Abilities Evaluation recommended by Lani Legaspi submitted June 14, 2018, and denied October 10, 2018?

vi. Is the applicant entitled to $2,230.58 for chiropractic services recommended by Vaughan Wellness Centre submitted on February 9, 2019, and denied on February 19, 2019?

vii. Is the applicant entitled to $2,230.58 for physiotherapy recommended by Vaughan Wellness Centre submitted on May 5, 2019, and denied on November 7, 2019?

viii. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664? Details of the award will be provided by July 30, 2021.

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

RESULT

3The issues of the income replacement benefit, attendant care benefit and the cost of examination for a Functional Abilities Evaluation (issues i, ii, and v) were withdrawn by the applicant and I therefore do not make any decision on them.

4The applicant is not entitled to the cost of $2,625.11 for physiotherapy and massage services (issue iii), nor the $2,680.00 for an orthopedic assessment (issue iv), as he has not shown these treatments are reasonable and necessary.

5The applicant is entitled to $2,230.58 and $2,230.58 for chiropractic and physiotherapy services (issues vi and vii), as the respondent’s denials were not sufficient, and the applicant incurred the treatment.

6The applicant is entitled to interest on the incurred treatment.

7The applicant is entitled to a 25% award for the cost of the incurred, outstanding treatment plans.

PROCEDURAL HISTORY

8Before the commencement of the hearing, the parties consented to have the matter heard via written submissions.

ANALYSIS

Procedural issues

9The applicant submits that all the respondent’s denials for the disputed medical and rehabilitation benefits failed to comply with s. 38(8) of the Schedule, therefore, all of the treatment plans are payable. The respondent disagrees.

10Section 38(8) of the Schedule states that an insurer shall notify an insured person within 10 business days of receiving a treatment plan (the “OCF-18”) if it agrees or refuses to pay for the OCF-18 and provide the medical and all other reasons the OCF-18 is not reasonable and necessary.

11Section 38(11) of the Schedule states that if an insurer fails to give to comply with section 38(8), the insurer shall pay for the OCF-18 related to the period, starting on the 11th business day after the day the insurer received the plan, and ending on the day the insurer provides a notice that complies with section 38(8).

12The applicant argued that even though the disputed OCF-18s were not incurred, they were payable based on the binding Divisional Court decision of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200. According to the applicant, this Divisional Court decision found that an applicant does not have to incur a treatment plan for said treatment to be payable under sections 38(8) and (11) of the Schedule. The respondent did not address these submissions.

13Despite any compliance issues with the respondent’s denials of the disputed OCF-18s, I find that only they are only payable when the OCF-18s were incurred during the period of non-compliance.

14I find that the more appropriate Divisional Court decision related to this topic is Aviva General Insurance Company v. Catic, 2022 ONSC 6000, where the Divisional Court addressed the issue of non-compliant notices and denials, and found that for them to be payable, they must be incurred. Suarez means that, where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial. Catic is consistent with Suarez because if the insurer cures the defective denial before the Tribunal has adjudicated the disputed OCF-18, then that “closes the door” for the purposes of s. 38(11)2.

15I find Catic to be binding and directly on point in these circumstances and find that the applicant must show that the treatment plans were incurred during the period of non-compliance.

16The applicant submits that the OCF-18s for physical therapy in the amounts of $2,230.58 for physical rehabilitation of February 9, 2019, and $2,230.58 for physical therapy dated October 5, 2019, were incurred. The respondent did not address this.

Issues vi and vii – the denial of the OCF-18s for physiotherapy and chiropractic services were not compliant and therefore are payable

17The applicant argued that the respondent’s denials of the two OCF-18s for physiotherapy and chiropractic services were not sufficient, as they failed to include medical reasons or comment on the applicant’s conditions. The applicant also submits that that the physiotherapy OCF-18 of October 5, 2021, was not denied within the 10 business days required by the Schedule. The respondent submits that its denials did comply with the Schedule.

18I find that the respondent’s denials were not sufficient. Though I did agree that the respondent relied on medical evidence, meaning Dr. Urovitz’s IE, I did not find this evidence on its own provided the applicant with an unequivocal denial based on medical reasons.

19I agree with the applicant that simply denying a treatment plan based on an IE that did not address the disputed OCF-18 does not provide the applicant with an accessible and understandable reason for denying the physiotherapy and chiropractic benefits. I agree that based on 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), the respondent is required to do so.

20Since the applicant has incurred the physiotherapy and chiropractic benefits in dispute, he is entitled to payment based on the defective notice, which has not been rectified by the respondent. Therefore, I do not need to address if these OCF-18s are reasonable and necessary.

Issue iii - $2,625.11 for the cost of physiotherapy and massage services is not reasonable and necessary

21To 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.

22The applicant submits the OCF-18 for physiotherapy and massage services is reasonable and necessary and that his treating doctors recommend physical rehabilitation to address his accident-related injuries, which he submits include chronic pain.

23The applicant relies on the Emergency Department Triage Note from MacKenzie Richmond Hill Hospital dated March 22, 2018, the Insurer’s Examination (“IE”) of Dr. Edmin Urovitz, orthopaedic surgeon, of August 23, 2018, the clinical note and records (“CNR”s) of Dr. Luciano DiNardo, the applicant’s family doctor, of 2018, the Physiatry Consultation Report of Dr. Alfonse Marchie, physiatrist ,dated May 9, 2018, the Neurological Consultation Reports of Dr. Marek J. Gawel, neurologists dated December 3, 2019 and March 30, 2020, and the physiatry assessment of Dr. McKyla McIntyre, physiatrist, dated May 23, 2022.

24The respondent submits that the OCF-18 is not reasonable and necessary, and that the applicant has not met his evidentiary burden with respect to the OCF-18 or his assertation of suffering from chronic pain. To this point, it relies on the IE of Dr. Urovitz dated August 23, 2018, and Dr. Urovitz’s Insurer’s Addendum Report of June 17, 2022. The respondent also submitted that the applicant failed to request funding from his private medical benefits provider, Manulife, and therefore, based on section 47(2) of the Schedule, Manulife would be in priority for payment of this service.

25I find that the applicant has not shown that the disputed OCF-18 is reasonable and necessary. When looking at the entirety of the applicant’s evidence, I noted that the first mentioned of “chronic pain syndrome” was by Dr. DiNardo on June 7, 2018. Dr. DiNardo suggests the applicant continue with physical rehabilitation to address the chronic pain, but did not comment on what kind of rehabilitation, how often the applicant should be engaging in it and for how long.

26In 2019, Dr. Marchie noted that the applicant found physical therapy provided the applicant with relief and was helpful. However, I found the report of Dr. McIntyre’s more persuasive with respect to physical therapy. In 2022, Dr. McIntyre recommended that the applicant attend an interdisciplinary chronic pain program and noted that physiotherapy and massage services “can be beneficial for acute pain flares, and when used as time-limited, supplemental therapy to guide active home-based maintenance programs. I would favour active therapy”.

27When considering this evidence in light of the respondent’s IEs of Dr. Urovitz, I agree that the applicant has not met his evidentiary burden in showing that the requested OCF-18 is reasonable and necessary. Instead, I agree that the totality of the evidence showed that the applicant is likely experiencing chronic pain that would benefit from a chronic pain program. Though I appreciate that the applicant finds short relief from physical therapy, I would have expected one of his many specialists to specifically and explicitly recommend that the applicant attend physiotherapy and massage services, which was not the case before me. Instead, Dr. McIntyre was clear that she opined that she thought the applicant would benefit more from active therapy over passive therapy.

28In terms of section 47(2) I agree with the applicant and find that the respondent has not provided any evidence that the applicant did not request funding for this treatment from Manulife.

$2,680 for an orthopedic assessment is not reasonable and necessary

29The applicant submits that the OCF-18 for an orthopaedic assessment is reasonable and necessary. The applicant relies on the IE Orthopedic Surgeon Assessment Paper Review Report by Dr. Urovitz dated October 1, 2018 as well as the evidence he relied upon for the previously addressed OCF-18.

30The respondent submits that the OCF-18 for an orthopaedic assessment is not reasonable and necessary and relies on the IE Orthopedic Surgeon Assessment Paper Review Report by Dr. Urovitz dated October 1, 2018, and the Addendum report of Dr. Urovitz dated June 17, 2022. The respondent also relies on the CNRs of the applicant’s family doctor and submits that the applicant’s diagnostic imagining was all “normal”. The respondent also submits that the applicant’s family doctor could have referred the applicant for orthopaedic assessment via the Ontario Health Insurance Program (“OHIP”) but did not do so.

31I find that the orthopaedic assessment is not reasonable and necessary. I agree with the applicant that Dr. Urovitz did identify injuries in the applicant as a result of the accident, i.e., musculoligamentous injuries to the cervical spine, dorsal spine, lumbar spine, right shoulder, girdle, right hand and left ring finger with the possible displaced hairline fracture involving the left ring. However, I find that the applicant has not proven that the disputed assessment in reasonable and necessary; I was not directed to contemporaneous CNRs that specifically supported this assessment. I also agree with the respondent in that despite Dr. Urovitz’s findings above, the doctor opined that the disputed assessment was not reasonable and necessary because the applicant has no consistent, reproducible and corroborative, objective signs of an accident-related orthopaedic impairment.

Interest

32Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. In accordance with Suarez, interest is only payable once the treatment has been incurred and is overdue. Since the applicant submits that only the treatment plans for chiropractic and physiotherapy in the amounts of $2,230.58 each have been incurred, I can only order interest related to these 2 outstanding plans.

Award

33The 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 if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant is entitled to a 25% award on the outstanding, incurred benefits in dispute.

34The applicant submits he is entitled to an award. He argues that based on 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT), the amount of the award should be proportional based on the following criterion:

i. Blameworthiness of the insurer’s conduct; ii. The vulnerability of the insured person; iii. The harm or potential harm directed at the insured person; iv. The need for deterrence; v. The advantage wrongfully gained by the insurer; vi. Any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; vii. Length of delayed payment.

35The applicant submits that the respondent failed to continually adjust the applicant’s claim and ought to have reviewed its previous denials. In terms of the above-mentioned factors, the applicant argues that for factors i and iii, the respondent is to blame for the delay, as it still has not paid for the applicant’s treatments. As such, the applicant has been prejudiced by not receiving treatment his medical professionals supported. The applicant also submits that the respondent “blindly relied on Dr. Urovitz reports, despite the diagnoses in support of the treatment plans”.

36The applicant also did not specifically tie his argument to a factor but argues that the respondent’s conduct with respect to subsections 38(8) and (11) of the Schedule warrants an award. Based on the above, the applicant requests an award of 50% of all outstanding benefits.

37The respondent submits that an award is not warranted due to an incorrect decision but instead, the applicant must show that the respondent’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate as seen in K.Y. v Aviva Insurance Company, 2022 CanLII 151 (ON LAT).

38The respondent submits it has adjusted the applicant’s file in good faith as it continued to review and assess the applicant’s medical documentation. The respondent disagrees that it blindly relied on Dr. Urovitz’s findings. Instead, the respondent submits that the applicant’s own family doctor’s records did not address or recommend the OCF-18s in dispute. The respondent also submits that it continued to adjust the applicant’s claim in good faith based on its numerous IEs.

39The respondent also submits that as the OCF-18s have not been incurred, no award is owing.

40I find that the applicant is entitled to an award on the incurred treatment plans, meaning the two plans in the amounts of $2,230.58. Though I am mindful that the respondent did continually adjust the applicant’s medical claim in good faith, I cannot ignore that its denials of the disputed benefits failed to comply with the Schedule.

41I also found the respondent’s reliance on Dr. Urovitz’s IEs concerning, given that the doctor did not actually address all the disputed OCF-18s, Therefore, I was persuaded by the applicant’s arguments that an award was warranted in this matter, based on the applicant’s circumstances and the respondent’s conduct. I agree that the respondent’s conduct amounted to more than just an “incorrect decision” but instead constituted imprudent and inflexible behaviour.

42In terms of considering the amount of award to be ordered, I did consider the above-mentioned criteria and find that a 25% award would address the criteria of 17-006757. I agree that the respondent is blameworthy for its conduct. I was not directed to specific information regarding the vulnerability of the applicant, the potential harm to the applicant, the need for deterrence, the wrongfully gained advantage of the respondent, and other penalties/sanctions likely imposed on the respondent due to its misconduct.

43Though the applicant did not calculate the length of the delay in payment, given that he submitted the first disputed treatment plan in 2019, and it is currently 2023, I noted the applicant has waited at least three years for the respondent to pay for the incurred, requested treatments. Based on the circumstances, the delay and blameworthiness of the respondent’s conduct warrant an award of 25%.

ORDER

44The applicant is not entitled to the massage and physiotherapy services, as the applicant has not shown that this treatment is reasonable and necessary.

45The applicant is not entitled to the orthopaedic assessment, as the applicant has not shown that this treatment is reasonable and necessary.

46The applicant is entitled to the chiropractic and physiotherapy treatment plans in the amounts of $2,230.58 each, as the applicant incurred these treatments during the period when the respondent’s denials were not sufficient. Interest applies in accordance with s. 51 of the Schedule.

47The applicant is entitled to a 25% award on the two incurred treatment plans, each in the amount of $2,230.58, due to the respondent unreasonably withholding and delaying payments.