Licence Appeal Tribunal File Number: 21-005036/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:
Soraya Qayumi
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Aimee Draper, Counsel
HEARD:
In writing
OVERVIEW
1Soraya Qayumi (the “applicant”) was involved in an automobile accident on January 31, 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 Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for the resolution of the dispute.
2In her written submissions, the applicant added the issue of an award to the issues in dispute.
ISSUES
3The issues in dispute identified at the case conference are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 28, 2019, to January 31, 2021?
ii. Is the applicant entitled to $2,760.85 for a psychological assessment, recommended by Physio Fix and Fitness in a treatment plan (OCF-18) submitted on May 29, 2019?
iii. Is the applicant entitled to $600.00 for psychological services, recommended by Physio Fix and Fitness in a treatment plan (OCF-18) submitted on May 9, 2019?
iv. Is the applicant entitled to $797.82 for psychological services, recommended by Physio Fix and Fitness in a treatment plan (OCF-18) submitted on September 4, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant is not entitled to a non-earner benefit, as she has not shown she suffers a complete inability to live a normal life as a result of the accident.
5The applicant is not entitled to the $600.00 balance of the $2,760.85 for a psychological assessment, as the denial complied with the Schedule, and the benefit is not payable under the Schedule.
6Issues iii and iv are not in dispute, and therefore I make no determination on their merits.
7The applicant is not entitled to interest or an award, as no benefits are outstanding, nor were benefits payments unreasonably withheld or delayed.
PROCEDURAL ISSUES
Clarification of the Issues in Dispute
8The applicant submits that the denials for issues i to iv are insufficient and payable on this basis.
9The respondent submits that the Tribunal requires clarification regarding the issues in dispute. The respondent submits that issue ii is not reflected correctly and ought to be for $600.00 in transportation expenses the respondent refused to pay for related to a treatment and assessment plan (“OCF-18”) dated May 9, 2019, by Ana Bodnar, psychologist, for a psychological assessment.
10The respondent also submits that issue iii is an incorrectly identified duplication of issue ii’s transportation costs, as there is no second OCF-18 from the month of May 2019 related to psychological services.
11The respondent also sought to clarify issue iv. It submits the dispute relates to an Auto Insurance Standard Invoice (“OCF-21”) dated September 4, 2019, where the applicant sought a psychological assessment totalling $2,082.85 or $1,995.33 before taxes. The respondent relied on its EOB dated October 2, 2019, which approved $1,197.51 and $1,237.51, leaving $797.82 in dispute, as listed as issue iv. The respondent also submitted in paragraph 29 of its submissions that it has agreed to pay the balance of the dispute, provided the applicant consumes the treatment plan.
12The applicant did not address issue iv’s ambiguity or the respondent’s submissions related to this.
13After reviewing the Case Conference Report and Order, submissions, evidence and disputed OCF-18s, I agree that the only issues in dispute are: non-earner benefits (“NEB”s) – issue i; the $600.00 unpaid, transportation expense – issue ii; and interest – issue v.
14I found only 1 OCF-18 from May of 2019, which appears to have been duplicated from issues ii and iii. Moreover, I was only directed to 1 OCF-18 from May 2019 with a transportation cost of $600, which was related to a psychological assessment. As such, I will consider the balance of issue ii but not issue iii.
15In terms of issue iv, I agree that the issue of $797.82 relates to OCF-21 relied upon by the respondent and not an OCF-18. This is based on the evidence of the disputed OCF-21, the respondent’s denial of this benefit which left the disputed amount unpaid and the submissions of the respondent. Since the respondent has agreed to pay the disputed balance, this issue shall not be considered.
16The applicant made submissions regarding an OCF-18 of August 8, 2019, for psychological treatment, with no transportation component. I will not consider this issue since this issue does not relate to the issues in dispute.
17The applicant also raised the issue of an award in her submissions, which I added to the issues in dispute as issue vi.
The applicant is not entitled to the $600.00 balance of the OCF-18 for a psychological assessment
18The applicant argues that the respondent’s denial was deficient under sections 38(8) and (11) of the Schedule.
19The applicant submits the respondent denied the OCF-18 in its letter of June 4, 2019. The applicant submits that despite the respondent claiming it reviewed all of the applicant’s medical records, the disputed OCF-18 was denied based on the applicant’s injuries falling within the Minor Injury Guideline (“MIG”) and requested updated clinical notes and records (“CNR”s) to determine if the applicant required further treatment.
20The applicant submits there are several issues with this denial, including:
i. That the respondent claims it reviewed all of the applicant’s documents related to her claim, even though she only provided these documents within the submissions of the claim and the denial.
ii. That the respondent requested the applicant’s CNRs, even though the respondent claims it has reviewed all of the applicant’s medical documents.
iii. That the applicant’s injuries were minor.
iv. That the respondent failed to acknowledge the applicant’s pre-screen attached to the disputed OCF-18.
21The applicant submits he received a letter from the respondent on September 3, 2019, where the respondent approved most of the OCF-18 for psychological services. The applicant submits the reasons provided by the respondent for this decision failed to refer to the applicant’s medical records or documentation,
22Section 38(8) of the Schedule states that an insurer shall notify an insured person within 10 business days after receiving an 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. Should the insurer fail to comply with section 38(8), section 38(11) states, among other consequences, 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).
23The applicant submits that based on 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT), a proper denial must:
i. Be based on the “principled rationale” that is set out in the denial notice.
ii. Be accurate and contain specific details about the insured’s condition forming the basis of the decision, or the information required by the insurance company.
iii. Provide all applicable reasons for the denial.
iv. Provide clear, transparent and adequate reasons to allow an unsophisticated person to understand them and make an informed decision.
v. Provide a fair and not arbitrary decision.
24The applicant submits that the respondent’s denials of June 4 and September 3, 2019, failed to comply with any of these requirements. The applicant submits that the denials failed to consider the applicant’s condition, CNRs, and contain specifics about her conditions forming the basis of the denial.
25The respondent denies that its denial of the disputed OCF-18 dated June 4, 2019, was deficient. The respondent submits that the OCF-18 was denied based on the medical documentation it had on file at the time of receipt of the treatment plan, which did not support that the applicant suffered an accident-related, psychological impairment. The respondent submits the letter of June 4, 2019, requesting that the applicant submits supporting medical CNRs for consideration, which complies with the Schedule and case law.
26The respondent submits its letter dated September 3, 2019, confirming that the respondent received the applicant’s CNRs and partially approved the disputed OCF-18, except the $600.00 claimed for transportation expense, which was less than fifty kilometres away from the applicant’s home. The respondent also submits that the letter advised the applicant that payment of this OCF-18 would be made based on her actual completion time for each component of the psychological assessment, by the rates of the Professional Services Guideline (“PSG”), with an invoice submitted before payment.
27After reviewing the parties’ submissions and evidence, I find that the respondent’s denial of the disputed OCF-18 complies with the Schedule. Though the applicant submits that the respondent failed to properly consider her CNRs, I was not provided with submissions or evidence that supported her position. I have no idea when the applicant provided the respondent with her CNRs. However, without this information, she cannot advance her argument that her CNRs were not considered by the respondent.
28I find that the denials were based on a principled rationale, in that they explained the basis for the applicant’s denials, being that the applicant’s injuries fell within the MIG, and that the respondent lacked CNRs to support her position. Moreover, the denials also listed the information the respondent required from the applicant. The denials also provided all applicable reasons for the denials, which were clear, transparent and adequate and provided a fair decision.
29I note that there is nothing in section 38(8) of the Schedule that requires a respondent to refer to a pre-screen in its denial, nor was I provided with caselaw to this point. Therefore, I find that the respondent’s original denial of the dispute benefit, dated June 4, 2019, is valid.
30I must now consider if the balance of the disputed OCF-18 is reasonable and necessary. The applicant did not make specific submissions regarding this issue but relied on the disputed OCF-18.
31The respondent submits that based on section 3(1) of the Schedule, and that the transportation related to an expense that was only 4.5 kilometres and not fifty, as required for insured persons with non-catastrophic impairments.
32Section 3(1) of the Schedule provides definitions for various terms and phrases used in the Schedule. Sections 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule states that an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses.”
33Section 3(1) of the Schedule defines “authorized transportation expense” to mean those that: (a) comply with the latest transportation expense guideline published by the Financial Services Regulatory Authority of Ontario (or its predecessor, the Financial Services Commission), and (b) are expenses related to transportation for services incurred after the first 50 kilometres of a trip, unless an insured person has been deemed catastrophically impaired as a result of the accident.
34I find that the applicant is not entitled to the $600.00 for transportation costs related to the disputed OCF-18. I agree with the respondent’s argument, and that section 3(1) of the Schedule is clear concerning when transportation expenses can and cannot be paid. Since the applicant did not refute that his transportation resulted in less than fifty kilometres of travel, nor provide compelling case law or legislation to show that the benefit is payable, he is not entitled to the $600.00 balance.
The applicant is not entitled to the non-earner benefit
35When an insured person applies for accident benefits with an OCF-3 to the insurer, section 36(4) of the Schedule provides that the insurer is required to either pay the NEB, provide medical and any other reasons why it is not payable, advise that an IE is required if that is the case, or advise that it requires information under s. 33 of the Schedule. If an insurer fails to provide such notice within the requisite period, under s.36(6) of the Schedule, it is required to pay the NEB until it does provide the requisite notice.
36Section 44(5) of the Schedule provides that if an insurer requires an IE, it shall arrange for the examination at its own cost and provide the applicant with a notice which gives the medical and any other reasons for the exam, if attendance by the insured person is required, the name of the person conducting the assessments and their title, and the day, time and location of the exam.
37The applicant submits that a disability certificate (“OCF-3”) was provided by Dr. Rick Tavares, chiropractor dated August 28, 2019. This OCF-3 found that the applicant suffered a complete inability to carry on a normal life and that her condition would persist for twelve weeks or more.
38The applicant submits that the respondent’s denials of the NEB are invalid. In support, the applicant relies on the respondent’s denial letter of September 9, 2019, where the respondent denied the applicant’s non-earner benefit (“NEB”) as it was unable to determine whether the recommendations made in the OCF-3 meet the disability requirements for the specified benefit claimed and were unable to pay the NEB at the time. The respondent’s denial also provided that the medical reasons were that the disability period appears to be inconsistent with the “diagnosis or mecha..” with the rest of the reasons being cut off.
39The applicant submits that the respondent’s denial of the NEB again does not show that the respondent reviewed the applicant’s CNRs or the disputed OCF-3. Moreover, the applicant argues that the respondent’s letter does not even refer to the NEB but rather the “benefit being claimed” and that the medical reasons were “uncertain” by using the word “or”; therefore, the respondent’s denial of September 9, 2019, did not comply with the s. 36(4) of the Schedule, and therefore the applicant is entitled to an NEB based on section 36(6).
40The applicant submits the respondent required the applicant to attend three separate IES: an orthopedic assessment, an occupational therapy in-home assessment and a psychological assessment. The applicant submits these assessments were part of a multidisciplinary report, dated October 24, 2019, which the respondent relied upon to deny the applicant’s NEB. The applicant submits this notice did not comply with section 44(5) of the Schedule.
41The applicant also submits that the respondent’s EOB dated October 29, 2019, which denied the NEB based on the findings of the IE, which found that the applicant did not suffer a complete inability to carry on a normal life, is also invalid.
42The applicant relies on the factors of 17-003774/AABS and submits that the respondent’s denials and IE requests failed to comply with these requirements.
43The respondent submits that its denials and IE request of September 9, 2019, and its denial of October 29, 2019, were valid under the Schedule.
44The respondent submits that its denial of September 9, 2019, and request for IEs confirmed receipt of the applicant’s OCF-3. The EOB of September 9, 2019, also advised the applicant that the respondent could not determine if the applicant qualified for an NEB based on the medical information it had on file and the disability period claimed, given that the applicant’s disability period was inconsistent with the diagnosis and mechanism of her injuries. The respondent submits this denial and request for IEs provide the applicant with valid medical and other reasons for the denial and its request for IEs.
45The respondent submits that this position is supported by its EOB of September 23, 2019, where the respondent acknowledged receiving the applicant’s CNRs and approved the previously discussed OCF-18 in dispute.
46The respondent submits that the applicant’s OCF-3 claimed that the applicant suffered from whiplash-associated disorder II (“WAD-II”), with neck pain and musculoskeletal signs and impingement of the shoulder. The respondent submits that Dr. Tavares, who completed the OCF-3, did not have information regarding the applicant’s previous medical history. The respondent submits that the OCF-3 did not address the applicant’s longstanding history of depression.
47The respondent submits the EOB of October 29, 2019, also complied with the Schedule, as it provided medical and other reasons for the denial of the NEB. The respondent submits the denial was based on the medical documentation the respondent had on file as well as the multidisciplinary IE, which determined that the applicant was able to perform her pre-accident activities of daily living (“ADL”s) and did not suffer a complete inability to carry a normal life.
48After reviewing the denial and request for IEs of September 9, 2019, I find that the respondent complied with the Schedule. As discussed above, the applicant has not provided information as to when she provided the respondent with her CNRs to review and consider. Therefore, I found her argument that the respondent failed to consider this evidence unpersuasive, as she has not provided evidence to support her argument. Moreover, I would have expected the applicant to provide the Tribunal with the CNRs of her family doctor and the date they were transmitted to the respondent, which I was not provided with.
49Instead, I find that the denial of September 9, 2019, complies with section 36(4) of the Schedule, as it addresses the respondent’s other reasons for the denial; namely that the medical information the respondent had related to the applicant. I agree that the denial addresses the applicant’s specific condition, the basis of the denial, and the required information the respondent requested and presented this in a reason that the applicant could easily understand.
50In terms of the respondent’s request for IEs of September 9, 2019, I rely on the requirements of 17-003774/AABS, which state that under section 44(5) of the Schedule, an insurer must provide “the “medical and any other reasons” justifying a request for an IE. In this case, the respondent provided that the disability period on the applicant’s OCF-3 was inconsistent with her diagnosis or mechanism of injury. Given the applicant’s lack of medical records supporting her claim to disability, I find this notice to be consistent with the Schedule and appropriate, given the specific circumstances. I find that these reasons also support the respondent’s need for IEs and therefore, comply with section 44(5) of the Schedule and the requirements of 17-003774/AABS.
51In terms of the denial of October 29, 2022, I also find that this complied with the Schedule. The denial provides the medical and other reasons for denying the applicant entitlement to the NEB. The denial states that based on the respondent’s multidisciplinary IE, the applicant was found to not suffer a complete inability to carry on a normal life. The denial also provided information about each IE assessor’s findings. I find that this denial also complies with 17-003774/AABS and the Schedule. The denial provides the applicant with the medical and other reasons for the denial. Therefore, the notices and IE requests of the respondent are found to be valid, and therefore I do not find that s. 36(6) of the Schedule applies to the applicant.
52I must now address the applicant’s entitlement to the NEB.
53Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391, which generally focuses on comparing the applicant’s pre- and post-accident activities. The burden of proving entitlement to an NEB lies with the applicant.
54The applicant did not make submissions to address this issue.
55The respondent submits that the applicant has not met her evidentiary burden of showing that she suffers a complete inability to carry on a normal life as a result of the accident.
56The respondent relies on matter 16-000134/AABS v. TD General Insurance Company, 2017 CanLII 19187 (ON LAT), where the Tribunal found that to qualify for an NEB, an applicant must compare her activities and life circumstances before and after the accident to determine in an applicant qualifies for an NEB under section 3(7) of the Schedule.
57The respondent submits that the applicant did not provide any evidence regarding this, as she did not provide an affidavit or statement regarding her ADLs, nor rely on a section 25 report to provide her position. Therefore, the respondent submits that the applicant has failed to prove that she suffers from an impairment as a result of her accident that prevents her from engaging in substantially of her pre-accident activities and cannot succeed with her claim for an NEB.
58The respondent relies on its multidisciplinary assessment report IE, dated October 24, 2019. In this IE, Dr. Jacqueline Auguste, orthopedic surgeon, found that the applicant did not suffer a complete inability to live a normal life as a result of the accident. This opinion was echoed by Dr. Mohammed Nikkhou, psychologist, and Lynn Rutledge, occupational therapist.
59I find that the applicant is not entitled to the NEB. I agree with the respondent and find the applicant has not shown that she suffers a complete inability to carry on a normal life as a result of her accident. I agree with the respondent in that the applicant has not provided detailed information regarding her pre-accident activities which she normally engaged in, including the frequency and time commitments of said activities and how long these now take after her accident versus before her accident. Heath requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period. The applicant has not provided this comparison.
60I find there was limited evidence with respect to the applicant’s pre-accident activities and how her accident-related impairments have caused a complete inability to carry on with them after her accident. This evidence includes the applicant’s pre-screen attached to the OCF-18 with $600.00 in dispute and OCF-3. I did not find these documents persuasive, as they did not provide a fulsome exploration of the applicant’s pre-accident life, and instead noted the applicant’s subjective issues and complaints.
61I also agree with the respondent’s argument that the applicant also did not provide any direct evidence via testimony or affidavit to speak to the Heath factors. Most of the evidence led by the applicant did not provide a fulsome snapshot of what her normal day to life after her accident consisted of and how it differed from her pre-accident life. Instead, her evidence supported that she was still able to engage in her ADLs, albeit at a reduced level as she was having pain.
62I find that the applicant had not provided sufficient evidence that her accident-related injuries practically prevent her from engaging in the majority of her ADLs. I was also not given a full understanding of how the applicant’s accident-related impairments led to a complete inability. Therefore, I find the applicant has not met the NEB test and is not entitled to the NEB benefit.
Interest
63Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since no benefits are found to be owing, no interest is payable.
Award
64Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled. As I have found that there is no payment of benefits unreasonably withheld or delayed, there is no basis upon which to consider an award in this matter.
ORDER
65The applicant is not entitled to a non-earner benefit, as she has not shown she suffers a complete inability to live a normal life as a result of the accident.
66The applicant is not entitled to the $600.00 balance of the $2,760.85 for a psychological assessment, as this benefit’s denial complied with the Schedule and the benefit is not reasonable or necessary.
67Issues iii and vi are not in dispute.
68The applicant is not entitled to interest or an award, as no payments for benefits are outstanding or unreasonably withheld or delayed.
Released: September 13, 2023
Stephanie Kepman
Adjudicator