Moiz Taksali v. Aviva Insurance Company, 2023 CanLII 96347

Licence Appeal Tribunal

Citation: Taksali v. Aviva Insurance Company, 2023 ONLAT 21-004696/AABS

Licence Appeal Tribunal File Number: 21-004696/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:

Moiz Taksali

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Jonathan D. Wong, Counsel

HEARD: In Writing

OVERVIEW

1Moiz Taksali (the “applicant”) was involved in automobile accidents on November 18, 2018 (MVA 1) and September 12, 2019 (MVA 2) 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 resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit of $388.35 per week from November 13, 2019 to date and ongoing, in relation to the accident of November 18, 2018 (“MVA 1”)?

ii. Is the applicant entitled to an income replacement benefit of $388.35 per week from October 17, 2019 to date and ongoing in relation to the accident of September 12, 2019 (“MVA 2”)?

iii. Is the applicant entitled to $2,082.85 for a psychological assessment proposed by Physio Fix in a treatment plan which was denied on September 19, 2019?

iv. Is the applicant entitled to $4,568.94 for a physiotherapy treatment proposed by Dr. Malik in a treatment plan which was denied on November 13, 2019?

v. Is the applicant entitled to interest on any overdue payment of benefits? 2019?

RESULT

3For the reasons that follow, I find that the applicant is:

i. entitled to an IRB of $388.35 per week regarding MVA 1 plus applicable interest;

ii. entitled to an IRB of $388.35 per week regarding MVA 2 plus applicable interest;

iii. entitled to $2,082.85 for a psychological assessment, plus applicable interest; and

iv. entitled to $4,568.94 for a physiotherapy treatment, plus applicable interest.

ANALYSIS

Issue 1 - The applicant is entitled to an IRB of $388.35 per week from November 13, 2019 to November 18, 2020, in relation to MVA 1.

4I find the applicant has met his burden to prove he is entitled to this benefit.

5To receive payment for an income replacement benefit (“IRB”) under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

6The respondent required the applicant to attend insurer examinations with respect to his entitlement to IRBs arising from MVA 1. The criteria for notice letters that require an applicant’s attendance at an insurer examination (“IE”) are set forth in s. 44(5)(a) of the Schedule. The insurer must set out “the medical and other reasons for the examination”.

The notice of examination (“NOE”) for this IRB claim was insufficient

7Following MVA 1, the applicant’s family doctor, Khalida Ghazala (“Dr. Ghazala”) submitted in an OCF-3 (Disability Certificate 1) dated January 7, 2019 in which she stated that the applicant is “substantially unable to perform the essential tasks of his employment” due to the injuries he received. Subsequently, the respondent paid the applicant an IRB in the amount of $388.35 per week until November 13, 2019.

8The respondent, by way of a notice letter to the applicant dated September 20, 2019, advised the applicant of his requirement to attend IEs to determine his continued eligibility to receive the IRB.

9Following those IEs, Dr. Farooq Ismail, physiatrist, and Dr. Mohammad Nikkhou, neuropsychologist, concluded that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a direct result of the motor vehicle accident.

10Based on the results of the IEs, the respondent then terminated the applicant’s IRBs, by way of letter to the applicant, dated November 13, 2019.

11The applicant submits that the NOE requiring the applicant’s attendance at the IEs, did not meet the insurer notice conditions of s. 44(5) of the Schedule and, therefore, the findings of the IEs should be disregarded.

12The respondent submits that the NOE was sufficient and therefore the denial of the IRBs was in accordance with the Schedule. Accordingly, the IEs were properly scheduled, and their findings are to be considered by the Tribunal.

13The respondent further submits that, even if the denial or the NOE were deficient, the fact that the applicant attended the IEs renders any argument with respect to the denials and sufficiency of notice irrelevant.

14In the NOE the respondent advised the applicant that the medical reason for the requirement to attend the IEs was that “The disability period appears to be inconsistent with the diagnosis or mechanism of injury.”

15The applicant submits that this is an insufficient medical reason, thus making the notice letter of no effect, and negating the findings of the IEs.

16I find that the respondent’s NOE did not offer sufficient reasons for the applicant’s attendance at the IE pursuant to the Schedule.

17The criteria for notice letters requiring the attendance at IEs are set forth in s. 44(5)(a) of the Schedule. The insurer must set out “the medical and other reasons for the examination”. Therefore, the sufficiency of the notice of September 20, 2019 revolves around the definition of “medical and other reasons for the examination”. This was considered by Executive Chair Linda P. Lamoureux in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“M.B.”):

In my view, an insurer satisfies its obligation to provide its “medical and other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

18While other Tribunal decisions are not binding on me, I agree with Executive Chair Lamoureux’s reasons.

19I fail to see any reference to the applicant’s medical condition or any allusion to medical information that is required by the respondent in the letter of September 20, 2019. The NOE gives the reason as, “the disability period appears to be inconsistent with the diagnosis or mechanism of injury” but does not identify the diagnosis or any other specific conditions, situations or reasons why the IEs were required. Rather, the NOE seems to reference a standardly held theory of the usual recovery period of a soft tissue injury. This certainly does not meet the requirement of specificity to the applicant’s medical condition. For this reason, I conclude that the notice letter of September 20, 2023 is insufficient with respect to the requirements of s. 44(5) of the Schedule.

The attendance of an applicant at an examination does not waive their right to challenge the notice

20As noted, the respondent submits that, the insufficiency of the notice is irrelevant because the attendance of the applicant at the IEs rendered any argument that the applicant had or may raise in regard to the sufficiency of the notices of examination “moot”. In other words, by attending the examinations, the applicant effectively waived his right to object to any insufficiency of the notice.

21The applicant asserts that the attendance at the examinations does not make moot the argument of the insufficiency of the notices and does not effectively waive their ability to raise that argument. The applicant submits that the Schedule is a consumer protection legislation and, accordingly, the accident benefit entitlements of beneficiaries therein cannot be waived. The applicant relies upon M.B. (supra), in which Executive Chair Lamoureux notes the following:

Aviva cannot rely on s. 55(1)2 to bar M.B.’s application unless it has provided her with sufficient notice, which it has not. Moreover, holding M.B. to her agreement to attend the IEs would be tantamount to finding that she waived Aviva’s obligation to provide her with sufficient notice under s. 55(1)2, a proposition with which I have difficulty. While the Schedule contemplates several instances in which insurers may or may not waive the regulation’s requirements, it makes no provision for an insured to do the same. Thus, I fail to see how I can use M.B.’s previous agreement to attend the IEs to provide Aviva any relief against the Schedule’s mandatory language.

22I concur with Executive Chair Lamoureux, and agree with the applicant in this respect. There is no provision for an insured to waive their right to a benefit, most especially by attending an examination at which their non-attendance would threaten their entitlement to the benefit that they are seeking. While the Schedule offers the insured the provision of appealing to the Tribunal upon the denial of a benefit due to a non-attendance at an examination, this places the insured in a position of either attending an examination for inadequate reasons or not attending, thereby incurring the immediate loss of his benefit and the financial cost of appealing to the Tribunal. This is contrary to the spirit and intent of the Schedule.

The insufficient notice letters are not ‘cured’ by subsequent medical reasons provided

23The respondent also submits that any inadequacy of the NOE was cured when it provided the medical findings of the IE assessors in accordance with s. 37 of the Schedule.

24The applicant submits that the IEs were procured by the Respondent in a manner that is inconsistent with the both the letter and the “consumer protection” spirit of the Schedule, and, therefore, the IEs and its results should be considered invalid ab initio (from the beginning).

25I agree with the applicant. In my view, providing the findings from improperly procured IEs as the medical reason for the denial of the benefit cannot remedy the initial insufficiency of the NOE that led to those IEs. The respondent relies on the reconsideration decision of AT v. Aviva Ins. Canada, 2021 CanLII 73717 (ON LAT) (“AT”) in which Vice-Chair Boyce affirms that insufficient denial letters were ‘cured’ by a subsequent letter including the findings of s. 44 reports on which the original denial was based, but not included. Unlike in AT, where the insurer failed to include already completed IE reports in their denial letters, in the case before me the purpose of the NOE was to require attendance at IEs. In other words, the insurer in AT already had the reasons prior to the denial letters, but had just failed to provide them in the notice. In the case before me, the insurer is seeking to justify any insufficiency with reasons that they did not have at the time of denial and would not have received except for the attendance at the IE which was improperly scheduled.

26The respondent also cites 17-003906 v The Guarantee Company of North America, 2018 CanLII 39446 (ON LAT) (“17-003906”), in which the Tribunal ruled that an insufficient denial letter was ‘cured’ by a second denial letter including a s. 44 paper review obtained after the first denial letter. As with AT, in 17-003906, the insufficient denial letters were not issued for the purpose of requiring the attendance at s. 44. In 17-003906, the insurer obtained further medical documentation on its own by way of a paper review, based upon medical documentation already in their possession. Whereas, in the case before me, again, the insufficient notice letter to the applicant led to the production of improperly procured IEs which the respondent attempted to repurpose to legitimize the improper NOE retroactively. This is much different than the respondent independently obtaining documentation (such as a s. 44 paper review commenced by a sufficient s. 44 notice letter) which can then rectify the deficiency in a prior insufficient notice.

27In my view, an insufficient s. 44 NOE cannot be cured by an IE resulting from that defective notice. To accept that it can remedy improper correspondence is to discount any value of the notices and place all of the value on the IE, whether it was legitimately scheduled or not.

28I subsequently conclude that the notice letter of September 20, 2019 was insufficient and the right to challenge that insufficiency was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs in the letter of November 13, 2019. I therefore find that, as the IEs themselves were improperly required, their results will not be considered in this matter.

I find that the applicant has met his onus to prove entitlement to IRBs for MVA 1

29I find the applicant is entitled to IRBs for MVA 1.

30The applicant submits that IRBs are payable for MVA 1 and relies on s. 36(4) of the Schedule which states that within 10 business days after the insurer receives the application and disability certificate, the insurer shall give the applicant notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination.

31Section 36(6) of the Schedule sets out that if the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.

32The respondent submits that their denial of the IRBs “rests squarely on the results of the IE assessments” (which, as noted, the content and results of which will not be considered due to the insufficient NOEs).

33As I have found that the NOE dated September 20, 2019 is inadequate, according to s. 36(6) of the Schedule, the respondent is liable to pay the income replacement benefits from the date of the “completed disability certificate” (January 7, 2019) until the insurer “gives a notice described in subsection (4) (b), on the day the insurer gives the notice.” As no subsequent sufficient notice has been provided to the applicant, and as I have found that the insufficient notice has not been cured, the insurer shall pay income replacement benefits in the amount of $388.35 per week from January 7, 2019 to the 104 week post-accident date of November 18, 2020, less any amounts previously paid.

Issue 2 - The applicant is entitled to an income replacement benefit of $388.35 per week from October 17, 2019 and ongoing in relation “MVA 2”

34The applicant has met his onus to prove that he is entitled to IRBs following MVA 2.

35The applicant relies upon the OCF-3 (Disability Certificate 2) dated December 12, 2019 in which Dr. Ghazala submitted that the applicant is “substantially unable to perform the essential tasks of his employment” and cannot return to modified duties, due to the injuries he sustained in MVA 2. As with Disability Certificate 1, Dr. Ghazala noted that anticipated duration of the disability is more than 12 weeks. The applicant applied for IRBs with respect to the injuries incurred in MVA 2.

36The respondent, by way of a notice letter to the applicant dated February 6, 2020 (NOE 2), advised the applicant of his requirement to attend IEs to determine his continued eligibility to receive the IRBs.

37The applicant attended the IEs and based on the results of the IEs, the respondent denied the IRBs by letter dated August 4, 2020.

38The medical reason provided in the NOE 2 was that, “The impairments identified do not appear to clearly or directly caused by the accident.” No further details were provided with respect to what medical records they were depending on, or why they came to that conclusion.

39For reasons previously provided, I conclude that medical reasons in the NOE of February 6, 2020 were insufficient and that the conclusions of the subsequently attended IEs will be disregarded. Also, for reasons previously provided, I find that the insufficient NOE was not ‘cured’ by the results of the subsequently provided IE.

40As I find that the NOE of February 6, 2020 was insufficient, and was not subsequently cured, according to s. 36(6) of the Schedule, the applicant is entitled to income replacement benefits in the amount of $388.35 from the date of the Disability Certificate, December 12, 2019 until the 104 week date, that being September 12, 2021 less amounts paid for the same time period for MVA 1.

Issue 3 - The applicant is entitled to $2,082.85 for a psychological assessment

41I find that the applicant is entitled to $2,082.85 for a psychological assessment proposed by Physio Fix.

42To 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. Notably, for an applicant to prove that an assessment is reasonable and necessary, it is not crucial for the applicant to prove the actual existence of a condition; rather, the applicant must prove that there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment.

43On July 10, 2019, a Treatment Plan (“OCF-18”) in the amount of $2,082.85 was submitted by psychologist, Dr. Ana Bodnar, proposing that the applicant undergo a psychological assessment.

44In her Pre-Screening Report, attached to the OCF-18, Dr. Bodnar concluded by stating,

a. “In summary, Mr. Taksali reported feelings of depression and anxiety since his motor vehicle accident on November 18, 2018. He has difficulties carrying on his daily responsibilities due to his psychological problems. He can no longer manage the same level of household chores or fully participate in his daily activities. He has significant psychological difficulties and as such, his case should not be viewed within the Minor Injury Guidelines. “

45On July 19, 2019, the respondent sent a letter denying the OCF-18, requiring that the applicant attend an IE with respect to the OCF-18. The medical reason provided was that “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”

46The applicant attended the IEs.

47The medical reason provided by the respondent fails to reference any specific medical condition of the applicant, nor any connection of the proposed treatment to his medical condition. It is also apparent that the reason is a template, being repeated verbatim for the denial of physiotherapy treatment in issue in this application. The medical reasons do make reference to the review of the treating practitioner’s medical opinion, but fails to specify which practitioner and what opinion. It also refers to a review of the minor injury guideline. While the Schedule contains the medical definition of the MIG, this ‘reason’ does not specify which condition of the applicant the respondent is relying upon in relation to the MIG definition.

48Also, merely naming the minor injury guideline as a ‘reason’ for denial is problematic. Firstly, the reason is circular. In essence, what this is communicating is that the insured is in the MIG because the insured is in the MIG. Secondly, it is not clear to the unsophisticated person is as to what specific medical condition this refers to.

49The Schedule is consumer protection legislation. In that light, when an insurer denies a requested benefit, it is incumbent upon that insurer to provide detailed and well considered reasons for that denial. I conclude that the respondent’s medical reason for the IE does not meet that threshold. Therefore, I find that the notice is insufficient and did not provide the medical reasons required under s. 38(10) of the Schedule. Subsequently, the resultant conclusions of the IE will not be considered. For reasons previously provided, I find that that the insufficiency of the notice was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs.

50As the respondent failed to give a proper notice in accordance with s. 38(8) of the Schedule, provided under s. 38(10) of the Schedule, the respondent shall pay for the OCF-18, in accordance with s. 38(11)2 and s. 38(15) of the Schedule.

51S. 38(15) of the Schedule states that the insurer is required to pay for treatment under s. 38 within 30 days after receiving an invoice for them. In this regard, I am bound to apply the principles of the Divisional Court decisions of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”) and Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”).

52In Suarez, the Divisional Court ruled 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.

53In Catic, the same court decided that 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. In other words, once the defective denial is cured, the insurer’s liability to pay for the invoiced treatment does not extend beyond the period of the insurer’s non-compliance.

54I find Suarez to be more on point in this instance. The notice of the denial of the OCF-18 was deficient. For reasons previously provided, I find that that the insufficiency of the notice was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs. Therefore, the applicant is allowed to consume the OCF-18 and the respondent shall pay for that treatment upon receipt of the invoice for the same in accordance with s. 38(15) of the Schedule.

Issue 4 - The applicant is entitled to $4,568.94 for a physiotherapy treatment

51On August 20, 2019, a Treatment Plan (“OCF-18”) in the amount of $4,568.94 was submitted by chiropractor, Dr. Malik Fawad, proposing that the applicant receive physical rehabilitation.

52On September 23, 2019, the respondent sent a letter denying the OCF-18, requiring that the applicant attend an IE. The medical reason provided was that “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”

53As noted above, this medical reason justifying IEs regarding physical treatment is the identical reason that the respondent used to justify requiring IEs regarding a psychological assessment. It is obvious that no detailed analysis or consideration invested in the medical reason for either. For this reason, and for the same reasons provided in the previous issue, I find that the medical reason provided in the notice to the applicant is insufficient and did not provide the medical reasons required under s. 38(8) of the Schedule. Subsequently, the resultant conclusions of the IE will not be considered. And again, for reasons previously provided, I find that that the insufficiency of the notice was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs.

54As the respondent failed to give a notice in accordance with s. 38(8) of the Schedule, provided under s. 38(8) of the Schedule, and as that insufficient notice has not been subsequently cured, the principles of Suarez apply and the respondent shall pay for the OCF-18, in accordance with s. 38(11)2 and s. 38(15) of the Schedule.

Issue 5 – Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

56For the reasons outlined above, I find that:

(i) The applicant is entitled to an income replacement benefit in the amount of $388.35 per week from November 13, 2018 to November 13, 2020, less any amounts previously paid, in relation to MVA 1;

(ii) The applicant is entitled to an income replacement benefit in the amount of $388.35 per week from October 17, 2019 to September 12, 2021, less amounts paid for the same time period for MVA 1, in relation to MVA 2;

(iii) The applicant is entitled to $2,082.85 for a psychological assessment;

(iv) The applicant is entitled to $4,568.94 for a physiotherapy treatment;

(v) The applicant is entitled to interest on any overdue payment of benefits.

Released: October 13, 2023

__________________________

Jeffery Campbell

Vice-Chair