Citation: Thorner v. Aviva Insurance Company of Canada, 2023 ONLAT 20-008531/AABS
Licence Appeal Tribunal File Number: 20-008531/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:
Julia Thorner
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Nisaa Khan, Counsel
Written Hearing: Heard by way of written submissions
BACKGROUND
1The applicant was injured in an accident on February 7, 2015, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied the treatment and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2According to the Case Conference Order, the following issues are in dispute:
a. Is the applicant entitled to $763.40 for massage, chiropractic and physiotherapy services submitted in an OCF-6 dated July 10, 2018?
b. Is the applicant entitled to $2,400.00 for a chronic pain assessment recommended by Dr. T. Getahun in an OCF-18 dated July 14, 2020?
c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to payment of expenses in the OCF-6 or to payment of the OCF-18 in dispute. As no benefits are owing, it follows that no interest applies, and costs and an award are not applicable.
ANALYSIS
Is the applicant entitled to $763.40 submitted in an OCF-6 dated July 10, 2018?
4At issue are various expenses outlined in an OCF-6 in the amount of $763.40 for massage therapy, chiropractic treatment and physiotherapy services that the applicant received from practitioners in the United States. As I understand it, the applicant submits that because of Aviva’s position that the MIG applied to her claim, she was forced to incur treatments not covered by OHIP and that Aviva ought to have known that she would require ongoing treatment for her chronic pain. In addition, she asserts that Aviva ignored her July 10, 2018 expense claims until July 27, 2021.
5In response, Aviva submits that it provided an Explanation of Benefits letter denying her expenses on July 20, 2018. In evidence is a letter dated July 20, 2018 that provides three reasons why the various treatment expenses were denied: because the MIG applied at the time and the applicant only had $4.68 remaining; because the applicant was required to first submit the expenses to her collateral provider Manulife; and, because an OCF-18 is required prior to incurring any medical services. It appears that this letter was re-sent to the applicant on July 27, 2021 re-iterating Aviva’s previous position that s. 38(2) of the Schedule applied and that the expenses were not payable.
6Pursuant to s. 38(2), an insurer is not liable to pay an expense in respect of a medical benefit that was incurred prior to the submission of an OCF-18 unless the expense meets any of the exceptions provided. For example, where the insurer provided notice of an intent to pay without an OCF-18 under s. 39(1); the expense is for an ambulance or emergency basis; the expense is reasonable and necessary for prescribed drugs or goods referred to in certain subsections of s. 15 and 16 with a cost of $250 or less; or if the insurer agrees that the expense is essential under s. 15 or 16 and costs less than $250.
7Here, there is seemingly no dispute that the applicant failed to submit an OCF-18 for the various treatments prior to incurring the costs. Since Aviva did not provide notice under s. 39 of its intent to pay the costs, there was no apparent emergency basis for the services, there are no prescription expenses and the services do not fall under any of the s. 15 or 16 sub clauses, the applicant does not meet any of these exceptions to warrant payment.
8The applicant points to the s. 15(l)(h) clause which provides an exception for “other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person and for which a benefit is not otherwise provided in the Regulation,” arguing that all of the treatments were less than $250 on an individual basis. However, this argument fails to appreciate that the service must not be provided for in the Schedule (therefore requiring an OCF-18 prior to incurring), and the insurer must also find the service to be essential. Where Aviva has determined that the expenses are not reasonable and necessary, it is clear that the incurred treatment was not considered essential by it to justify payment. In any event, the listed expenses are for massage, physiotherapy and chiropractic treatment, all of which require an OCF-18, as they are modalities provided for elsewhere in the Schedule. These treatments required approval in an OCF-18 or an exception. None apply.
9Finally, there is no relief provided by s. 38(2) for the applicant’s contention that she was unrepresented at the time, did not receive notice and therefore did not appreciate these requirements. It is well-settled that an insurer is not liable to pay treatment expenses incurred prior to the submission of an OCF-18. Accordingly, the applicant is not entitled to payment for these expenses and no interest applies on same.
Is the $2,400 chronic pain assessment reasonable and necessary?
10To be entitled to a treatment plan under 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. 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 same are reasonable.1
11At issue is a Chronic Pain Assessment dated September 2, 2020, prepared by Novo Medical Services, which proposed a chronic pain assessment. As I understand it, the applicant asserts that Aviva improperly held her within the MIG and that its denial did not meet the requirements of s. 38(8) of the Schedule because its initial denial referred to a different OCF-18 and its corrected denial was served more than ten days following submission. Moreover, she submits that Aviva breached its fiduciary duty to adjust the claim in good faith and respond to the medical evidence she provided, chiefly, that she should not have been kept within the confines of the MIG.
12In response, Aviva submits that the first denial referencing an incorrect OCF-18 was inadvertent and this error was corrected as soon as it was discovered. It submits that it is not subject to the consequences of s. 38(11) because it cured the defective notice prior to the applicant incurring treatment, because the assessment is a duplication of a previous chronic pain assessment by the same assessor and because the applicant remained in the MIG at the time the OCF-18 was submitted. In any case, Aviva submits that the OCF-18 is not reasonable and necessary where the applicant has already been diagnosed with chronic pain and has been receiving treatment from various US-based providers.
13To begin, the OCF-18 was submitted on July 30, 2020. Aviva concedes that it sent an initial denial letter on August 11, 2020 and that the denial letter referred to an OCF-18 for an Occupational Therapy Treatment plan in the amount of $4,638.95, while also partially approving the plan in the amount of $3,242.40. This plan is unrelated to the applicant’s claim and was clearly an error. Aviva also concedes that it recognized this error and sent a corrected denial letter on August 28, 2020 identifying the proper OCF-18 and amount in dispute. The applicant submits that this constitutes a failure to comply with s. 38(8), meaning the OCF-18 is payable in full pursuant to s. 38(11) and the Divisional Court’s direction from Kyrylenko v. Aviva Insurance Canada, 2021 ONSC 4929, where the Court addressed the shall-pay provision. The applicant further asserts that because of its incorrect denial, Aviva cannot rely on the MIG to deny the OCF-18.
14In response, Aviva submits, and is correct, that an insurer is only obligated to pay for goods and services in an OCF-18 that are incurred from the 11th business day following the day of the submission up until the default by the insurer is corrected. In Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000, at paras. 17-18, the Divisional Court made a significant clarification to the Kyrylenko case on which the applicant relies, holding that only those goods and services that are incurred during the shall-pay period by an applicant are payable by an insurer following a noncompliant denial. As there is no dispute that the applicant did not incur the chronic pain assessment until after August 28, 2020, it follows that Aviva is not required to remit payment under the shall pay provision.
15However, the applicant is correct that the consequences of an improper denial under s. 38(11) are two-pronged. In addition to having to pay for any incurred treatment during a default, an insurer that issues an improper denial is also prevented from taking the position that the MIG applies regarding the OCF-18 in dispute. In this sense, the applicant is correct that Aviva cannot claim that the MIG applies. Yet, the case law provides that Aviva is also not obligated to fund the OCF-18 because the applicant failed to incur it during the period of non-compliance. In my view, this is something of a blind spot in the jurisprudence, where the Court in Catic did not speak to the Court’s finding in Zheng, Cai v. Aviva, 2018 ONSC 5707.
16Fortunately for the analysis here, when Aviva issued its corrected denial letter, it provided two reasons why it would not fund the OCF-18. The secondary reason was that it believed the applicant’s injuries were subject to the MIG. However, the primary reason (or at least the first listed reason in the denial letter) was that the applicant had “already attended a pain clinic with Dr. Bhatia and been assessed for chronic pain by Dr. Getahun. Therefore, another assessment for the same purpose is a duplication.”
17So, although Aviva was prevented from relying on the MIG to deny payment of the OCF-18, there is no direction in the jurisprudence providing that it is unable to rely on other reasons for a denial. In turn, in scenarios such as this—where Aviva cannot rely on the MIG to deny the claim but is also not required to fund treatment that was not incurred by the applicant—the analysis must return to a reasonable and necessary analysis where the applicant bears the burden of proof. This is because, according to the Catic Court at para. 18(v), the insurer only loses the ability to deny goods and services in the treatment plan on the basis that they are not reasonable and necessary “during the shall-pay period.”
18To this end, Aviva’s first listed reason for denying the OCF-18 was that it was a duplication of services. In submissions, it submits that the plan is not reasonable and necessary because it was not properly submitted through HCAI, that it was Dr. Al Jazwari and not Dr. Getahun who was the listed provider, and that the applicant was already attending a pain clinic and had been previously assessed by Dr. Getahun in 2016, which resulted in a chronic pain report. Ultimately, Aviva submits that the applicant has not demonstrated that the assessment was reasonable and necessary.
19In response, the applicant submits that the Tribunal should not consider the denial letter dated August 28, 2020, that she continues to suffer from ongoing impairments, that Aviva failed to respond in a timely manner, did not schedule s. 44 examinations to address her claim, and that it was reasonable to have the chronic pain assessment conducted by Dr. Getahun via WhatsApp due to the pandemic.
20On review of the evidence, I agree with Aviva that the chronic pain assessment proposed in the OCF-18 was not reasonable and necessary as it is a duplication of services. As a starting point, the applicant underwent a chronic pain assessment with Dr. Getahun on October 31, 2016 that resulted in a report. On November 14, 2019, Dr. Arnold, the applicant’s US-based physician, referred the applicant to Dr. Chung at the Polyclinic in Seattle, WA for her pain. Dr. Chung also conducted an assessment and referred the applicant for injections, which she received on an ongoing basis. As Aviva points out, Dr. Chung conducted at least six assessments of the applicant between January 16, 2020 and September 29, 2021 and administered cortisone injections, recommended physical therapy and conducted testing.
21Dr. Getahun’s own report remarks that he found the treatment recommendations by the applicant’s doctors in Seattle to be reasonable interventions, which calls into question the need for his report that is in dispute here. I agree with Aviva that it is unclear why another report from Dr. Getahun was required when the applicant was already well into a treatment plan with her US-based practitioners and had been providing positive reports. Dr. Arnold’s clinical notes contain no referral which would indicate the need for an updated chronic pain assessment, let alone one that was conducted via WhatsApp that featured no actual physical examination. Put another way, I am not persuaded that it was reasonable or necessary to pay $2,400.00 for an Ontario-based orthopaedic surgeon to re-assess the applicant for a chronic pain management program via WhatsApp while she was living in Seattle, WA and already receiving treatment and taking medication as part of a chronic pain management program.
22While the applicant’s submissions did not directly engage with the goals of the OCF-18, on review, Part 9 indicates that the objective of the assessment is to determine “the exact nature of her syndrome and arrange an appropriate pain management program to assist in her recovery.” Suffice to say, where the applicant had already been referred to Dr. Chung, had undergone physical therapy and received several injections, reporting positive progress before and after Dr. Getahun’s assessment, it is difficult to find that another report to arrange for a pain management program is reasonable or necessary to assist in her recovery. Indeed, given the stated goals of the OCF-18, I agree with Aviva that it was a needless duplication of services at the costs proposed and especially so where the applicant was not assessed in person and continues to reside and receive beneficial treatment in the United States.
23Accordingly, for these reasons, I find the applicant is not entitled to payment for the denied OCF-18 or interest, as she has not met her burden of demonstrating that the chronic pain assessment is reasonable and necessary.
Is the applicant entitled to an award and costs?
24The applicant sought an award under s. 10 of Regulation 664, submitting that Aviva unreasonably withheld and delayed the payment of the benefits and failed to consider the medical evidence before it. I find an award is not appropriate. The test for a s. 10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Where I have determined that no benefits are payable to the applicant, it follows that I have no basis on which to grant an award due to Aviva unreasonably withholding or delaying the payment of benefits.
25Pursuant to Rule 19 of the Tribunal’s Common Rules, the Tribunal may award costs where a party has acted unreasonably, frivolously, vexatiously or in bad faith during a proceeding. In submissions, the applicant sought $3,000 in costs due to Aviva being “inflexible, immoderate and unyielding in its approach and forcing a hearing.” As this matter proceeded in writing, I have no grounds on which to base a costs award, as there is no evidence before me that Aviva acted unreasonably, frivolously, vexatiously or in bad faith during the proceedings.
ORDER
26The applicant is not entitled to payment of the OCF-6 expenses or the OCF-18. No interest applies. An award and costs are not appropriate.
Released: February 13, 2023
Jesse A. Boyce
Vice-Chair