Lyla Meepham v. Aviva Insurance Company of Canada, 2023 CanLII 58535

Licence Appeal Tribunal

File Number: 21-003179/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:

Lyla Meepham

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Jeremy A. Roberts

APPEARANCES:

For the Applicant:

Lyla Meepham, Applicant

Michael Bishop, Counsel

For the Respondent:

Aviva Insurance Company of Canada,

Andrea Bandow, Counsel

HEARD: In Writing

OVERVIEW

1Lyla Meepham, the applicant, was involved in an automobile accident on September 2, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

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

ii. Is the applicant entitled to $2,941.57 for a chronic pain assessment, proposed by the Michael G. DeGroote Pain Clinic in a treatment plan submitted on February 11, 2021 and denied on February 16, 2021?

iii. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is subject to the MIG.

4The applicant is not entitled to the proposed treatment plan. It follows that neither interest, nor an award are payable.

5The application is dismissed.

ANALYSIS

Background

6This case is largely a procedural dispute rather than a substantive one. Both parties made arguments on the process for properly denying benefits.

7In considering the issue of improper denials, we can look to Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, where the Divisional Court found that the wording in s. 38(8), (9) and (11) of the Schedule clearly lays out the requirements of the denial of a treatment plan where the insurer relies on the MIG, and the consequences for failing to meet them. A proper denial must be given to the insured within 10 business days of its receipt by the insurer, set out the goods and services that the insurer does not agree to pay, and specify that the insurer considers the MIG applies. If the insurer does not do this, they are prevented from taking the position that the MIG applies, and they are liable to pay for treatment plans starting on the 11th business day after the insurer received the disputed treatment plan until the day the improper denial is cured. This period is referred to as the period of non-compliance or the "shall-pay" period.

8This was further clarified in Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 at para. 18, where the Court ruled that the insurer is only liable to pay for treatment plans that are incurred during the shall-pay period. In the decision, the Court found that "s. 38(8) and (11)2 must be read in conjunction with s. 38(15) which requires the insurer to pay for goods and services within 30 days after receiving an invoice for them [...] provided they are incurred during the shall-pay period", with the "shall-pay" period being enumerated in s. 38(11)2.

9Whether the applicant is subject to the MIG and whether the treatment plan is payable are both discussed through the lens of whether an improper denial has occurred and if it has been cured.

The applicant is subject to the MIG

10I find that the applicant's accident-related impairments are predominantly minor injuries that fall under the MIG. It is well-settled that the applicant bears the burden of demonstrating that removal from the MIG is warranted. Given that the applicant's theory of the case for removal from the MIG was based on a procedural defect, there were no submissions made by the applicant on a medical basis to demonstrate why their impairments would not be considered minor under s. 3 of the Schedule.

11The applicant argued that upon submitting an OCF-18 on February 11, 2021 for a multi-disciplinary assessment (item ii. above), they received a denial on February 16, 2021 which did not cite or even mention that the respondent felt that the applicant's injuries fell under the MIG. The applicant argued that per s.38(8), (9) and (11) of the Schedule the insurer must cite the MIG as a reason for denial and that failure to do so prohibits them from taking that position.

12The respondent argued that the applicant had already acknowledged that they were under the MIG given that their previous submission, a treatment invoice on November 20, 2014, was submitted on an OCF-21 form (auto insurance standard invoice). Section 49(1) of the Schedule requires the submission of an OCF-21 to an insurer prior to payment for expenses for goods and services received under the MIG. Furthermore, the respondent cured its improper denial through its letter of July 8, 2021 by providing a notice of denial specifying that the applicant's injuries were minor.

13Faced with no medical evidence to the contrary, and where it is the applicant's burden of proof, I accept the respondent's argument that the applicant continues to fall under the MIG. Moreover, as found at para. 21 of Zheng, Cai, an improper denial does not fully remove the applicant from the MIG on a permanent basis. It just removes the possibility of the respondent relying on the MIG to deny incurred benefits during the period of non-compliance.

The treatment plan is not payable

14I find that the treatment plan in dispute was improperly denied, but it is not payable given that it was not incurred during the period of non-compliance.

15Despite my finding above that the applicant is subject to the MIG, I agree with the applicant's argument that the treatment plan in dispute was improperly denied. The process for a proper denial is clearly laid out in the Schedule and was upheld by the Court in Zheng, Cai. The insurer did not specify that the MIG applied in their denial as required by s. 38(9) of the Schedule.

16However, given that the respondent cured their improper denial on July 8, 2021, the treatment plan is only payable during the period of non-compliance, being March 1, 2021 (the 11th business day after the respondent received it) to July 8, 2021. Furthermore, per Catic the insurer is only liable to pay those expenses incurred on this treatment plan during that "shall-pay" period.

17There is no dispute that the applicant failed to incur any treatment during the period of non-compliance. Given that no expenses were incurred during the non-compliance period, I conclude that there is nothing payable.

Interest

18As there are no payments owed, the applicant is not entitled to interest.

Award

19The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant did not make any submissions on this subject. As such, I do not find that the applicant is entitled to an award.

ORDER

20I order the following:

i. The applicant sustained minor injuries treatable within the MIG.

ii. Despite the respondent's non-compliance with s. 38 of the Schedule, the chronic pain assessment proposed by the Michael G. DeGroote Pain Clinic in a treatment plan submitted on February 11, 2021 is not payable given that it was not incurred during the shall-pay period.

iii. The applicant is not entitled to interest.

iv. The applicant is not entitled to an award.