Citation: Rodda v. Aviva General Insurance Company, 2024 ONLAT 21-011563/AABS

Licence Appeal Tribunal File Number: 21-011563/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:

Jane Rodda

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Yalda Aslamzada, Counsel

For the Respondent:

Sophia Chaudri, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jane Rodda, (the “applicant”), was involved in an automobile accident on June 11, 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 General 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:

1. Is the applicant entitled to receive income replacement benefits (“IRB”) in the amount of $400.00 weekly for the period of September 10, 2021, to date and ongoing?

2. Is the applicant entitled to receive medical benefits in the amount of $3,607.74 for chiropractic services recommended by Heartland Wellness Clinic in a treatment plan (“OCF-18”) submitted on November 27, 2020, and denied on January 19, 2021?

3. Is the applicant entitled to receive medical benefits in the amount of $3,954.57 for assistive devices recommended by Tier 1 Assessments Ltd., in an OCF-18 submitted on June 28, 2021, and denied on July 13, 2021?

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

5. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to an IRB or the OCF-18s in dispute. Interest is not payable, and the respondent is not liable to pay an award.

ANALYSIS

The respondent complied with Section 36(4) of the Schedule as it pertains to the IRB in dispute

4I find the applicant has not demonstrated that the respondent’s medical reasons for requiring an insurer’s examination (“IE”) are deficient.

5Section 36(4) of the Schedule obligates the insurer to take one of three actions within 10 days of receiving a completed application and disability certificate (“OCF-3”). The insurer must: (a) pay the specified benefit; (b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit; or (c) send a request for more information to the applicant under subsection 33(1) or (2).

6Failure to comply with section 36(4) of the Schedule triggers section 36(6), which states 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 on the day the insurer gives a notice described in section 36(4)(b).

7Section 44(5) of the Schedule pertains to notice of an IE, and, like section 36(4), obligates the insurer to provide the medical and any other reasons for the examination.

8The applicant’s reply submissions emphasize that her appeal of all issues in dispute pertain exclusively to fatal deficiencies in the respondent’s notices that render them inconsistent with the requirements of the Schedule.

9For the IRB specifically, the applicant submits that the medical reasons offered by the respondent in its notice dated June 21, 2021—which “requisitioned” (i.e., required) the applicant’s attendance at a series of IEs to determine her ongoing eligibility for an IRB—are deficient because they fall short of the expectations set out in sections 36(4) and 44(5) of the Schedule. The applicant explains that the medical reasons provided in the notice are not valid, fair, or principled because they rely solely on an interpretation of an OCF-3 that was two-years old, and that no consideration was given to the other medical evidence produced by the applicant since the OCF-3 was completed. The applicant contends the respondent was required to demonstrate why the IEs were reasonably necessary, given the context of the applicant’s medical file, but instead resorted to intimidation and coercion by threatening to suspend the IRB if the applicant did not attend.

10The respondent’s submissions argue that the notice it provided is crystal clear, principled, and adequately allows an unsophisticated person to understand the medical reasons for requesting an IE to determine ongoing eligibility to an IRB. The respondent adds that the applicant attended all the IEs without objection and was represented by counsel at that time. The respondent denies any intimidation or coercion.

11The applicant’s submissions do not direct me to the IE notice of June 21, 2021, and it is not bookmarked. I was unable to locate this notice in the 266-page document that comprises the applicant’s written submissions, evidence, and authorities, nor in the applicant’s reply. To prove the respondent’s notice is not compliant, the applicant must produce the notice because her submissions are not evidence. Therefore, the applicant has not satisfied her evidentiary onus. While I recognize the applicant submits, in her reply, that the respondent failed to substantively address her arguments in its submissions, I find it remains the applicant’s onus to make her case and is not incumbent upon the respondent to prove otherwise.

12On balance, I find the applicant has not established the respondent’s notice is non-compliant with the Schedule. Therefore, I do not agree the relief provided at section 36(6) of the Schedule applies here.

The OCF-18 for chiropractic services in the amount of $3,607.74

13I find the applicant has not demonstrated that the respondent’s medical reasons for refusing to pay this OCF-18 are deficient.

14Section 38(8) of the Schedule obligates the insurer to take one of two actions within 10 days of receiving a completed OCF-18. The insurer must: (a) pay the medical benefits; or (b) give the applicant a notice explaining the medical reasons and all of the other reasons why the insurer does not believe the OCF-18 is reasonable and necessary.

15Failure to comply with section 38(8) of the Schedule triggers section 38(11), which obligates the respondent to pay for all the incurred goods, services, assessments, and examinations described in the OCF-18, starting on the 11th day after the respondent received the application and ending on the day the respondent gives a notice described in section 38(8).

16It appears the applicant mistakenly presented its submissions on this OCF-18 as arguments pertaining to the OCF-18 for assistive devices and vice versa. The respondent did not speak to this error in its submissions. I find it reasonable to accept the applicant’s submissions as they were intended to be conveyed and not as they were organized in her written submissions.

17The applicant submits the respondent’s rationale for denying this OCF-18 fails to comply with section 38(8) of the Schedule in several ways. First, the applicant argues that the respondent’s rationale should be excluded from consideration because it relies on the deficient IRB notice and threats of coercion that are inconsistent with the consumer protection mandate of the Schedule. Second, the applicant says the IE report relied upon by the respondent was issued prior to the shoulder surgery that necessitated the treatment proposed in the OCF-18, and is therefore inapplicable to the OCF-18 because it does not contemplate material changes to the applicant’s condition post-surgery. Thirdly, the applicant disagrees that her rotator cuff injury is owing to pre-existing shoulder tendonitis, and not the accident as determined by the respondent.

18The respondent argues that both its notices—dated December 9, 2020, and January 19, 2021—are clear, unequivocal, principled, and address both the diagnosis and the issue of causation. The respondent points to the clinical notes and records of Dr. W. Ker Leggatt, which describe tendonitis in the applicant’s right shoulder, as well as the IE report of Dr. Inderdeep Manhas (general practitioner), which concludes that further facility-based treatment is not essential to realize further gains.

19I find the applicant’s submissions pertaining to the IRB notice deficiencies are not relevant because the applicant failed to prove the notice was, in fact, deficient or relied on coercion.

20I disagree that the IE report of Dr. Manhas (dated September 4, 2020) is not applicable to the OCF-18 because it was completed prior to the applicant’s surgery. The applicant points to additional comments in the OCF-18 that say she had right rotator cuff surgery on November 9, 2020, and that treatment to improve range of motion and strength is advised by the treating orthopaedic surgeon, Dr. Franco Tavazzini. While I accept the goals of the OCF-18 are consistent with Dr. Tavazzini’s recommendation, I find Dr. Tavazzini does not specify the treatment must occur in a facility-based environment. In fact, Dr. Tavazzini did not certify the OCF-18 prepared by Dr. Adib Ashraf (chiropractor) on November 23, 2020, and I was not pointed to evidence that proves the surgery report was provided to the respondent prior to its second notice to provide further insight regarding Dr. Tavazzini’s treatment recommendations, or to substantiate the rotator cuff surgery caused a significant, material change in the applicant’s condition as proposed in her submissions. In my view, the respondent was entitled to rely on Dr. Manhas’ opinion pending further investigation of the applicant’s post-surgical condition by IE assessor Dr. Greg Jaroszynski (orthopaedic surgeon).

21I am not convinced that the applicant’s shoulder tendonitis and rotator cuff syndrome are two different ailments as argued by the applicant. Dr. Leggatt’s clinical note of November 3, 2017, speaks to right rotator cuff tendonitis, and the OCF-18 describes rotator cuff syndrome on its list of injuries. I was not pointed to medical evidence that distinguishes one from the other. While I accept the respondent’s notices could have been more specific by mentioning the pre-existing tendonitis in the applicant’s right shoulder was related to her rotator cuff, I do not hold the respondent to the standard of perfection. Rather, I am satisfied that this medical reason, as articulated, was clear and specific enough to meet the principle of meaningful reasons as articulated in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), which provides that the refusal to pay a benefit, such as an OCF-18, must contain straightforward and clear language directed towards an unsophisticated person.

22On balance, I find the applicant has not established the respondent’s notice is non-compliant with the Schedule. Therefore, I do not agree the relief provided at section 38(11) of the Schedule applies here.

The OCF-18 for assistive devices in the amount of $3,954.57

23I find the applicant has not demonstrated that the respondent’s reasons for refusing to pay the balance of this OCF-18 are deficient.

24Section 38(8) of the Schedule obligates the insurer to take one of two actions within 10 days of receiving a completed OCF-18. The insurer must: (a) pay the medical benefits; or (b) give the applicant a notice explaining the medical reasons and all of the other reasons why the insurer does not believe the OCF-18 is reasonable and necessary.

25Failure to comply with section 38(8) of the Schedule triggers section 38(11), which obligates the respondent to pay for all incurred goods, services, assessments, and examinations described in the OCF-18, starting on the 11th day after the respondent received the application and ending on the day the respondent gives a notice described in section 38(8).

26The applicant submits that the rationale used by the respondent to partially deny the cost of an assistive device proposed in the OCF-18 (i.e., a transcutaneous electrical nerve stimulation “TENS” machine) falls short of the expectations set out in section 38(8) of the Schedule. The applicant explains that the respondent substituted reasons for feelings, and that it offered an anecdotal and arbitrary explanation for partial approval because it failed to substantiate that the device cost, as proposed, is unreasonable.

27The respondent argues that the OCF-18 does not provide an explanation as to why it proposes $500.00 for a TENS machine, or why the OCF-18’s treatment goals cannot be achieved with a less expensive unit. The respondent explains that the FSCO (Financial Services Commission of Ontario) Cost of Goods Guidelines (the “Guidelines”) say the maximum price payable for items like assistive devices is the lower of the retail price or the actual price paid, and that it found a TENS machine could be obtained for $99.00 from AGTA Home Health Care. The respondent adds it approved $3,502.55 of the $3,954.57 proposed on the OCF-18.

28I find that the amount in dispute on this issue is $452.02 and not $3,954.47 as agreed by the parties at the case conference. This is because the respondent partially approved $3,502.55 on this OCF-18, leaving a balance that is consistent with the unapproved portion of the proposed cost of the TENS machine including tax.

29I am not persuaded that the respondent’s explanation for approving only part of the proposed cost of the TENS unit is anecdotal and arbitrary. While the applicant argues it would have been relatively straightforward for the respondent to provide the applicant with something as simple as a link to a vendor who is selling TENS machines for ‘reasonable’ amounts, I find the respondent did just that when it included the website address of AGTA Home Health Care in its notice of July 13, 2021, to support its decision to approve up to $99.99 for a TENS machine. Further, while I agree that “feelings” was a poor choice of words to convey a reason for only partially approving the cost of the TENS machine, I do not accept this diminishes the validity of the actual reasons provided by the respondent for its decision because those reasons are well substantiated and in keeping with the Guidelines.

30On balance, I find the applicant has not established the respondent’s notice is non-compliant with the Schedule. Therefore, I do not agree the relief provided at section 38(11) of the Schedule applies here.

Interest

31Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. In this case, there are no benefits owing, therefore no interest is payable.

Award

32The applicant sought an award under section 10 of Regulation 664. Under section 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. In this case, there are no payments for benefits owing, so the respondent is not liable to pay an award.

ORDER

33The applicant is not entitled to an IRB or the OCF-18s in dispute. Interest is not payable, and the respondent is not liable to pay an award.

34The application is dismissed.