Alfajora v. Aviva Insurance Company, 2024 CanLII 121089

Licence Appeal Tribunal

Citation: Alfajora v Aviva Insurance Company, 2024 ONLAT 22-013540/AABS

Licence Appeal Tribunal File Number: 22-013540/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:

Diana Alfajora

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Rajiv Kapoor, Paralegal

For the Respondent: Jennifer Cosentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Diana Alfajora (“the Applicant”) was involved in an automobile accident on March 6, 2020, and sought benefits from Aviva Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the Applicant entitled to a medical benefit in the amount of $2,014.53 for a driving reintegration assessment, proposed by Novo Medical Services in a treatment plan, dated June 17, 2021?

ii. Is the Applicant entitled to $1,117.50 for a physiotherapy treatment plan proposed by Athlete’s Care Sports Medicine Centre, dated August 14, 2021?

iii. Is the Applicant entitled to medical benefits proposed by Premier Medical Health Centre, as follows: i. $2,066.53 for a chiropractic treatment plan, dated April 24, 2020; and ii. $2,043.00 for assistive devices proposed in a treatment plan, dated April 24, 2020?

iv. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed the payment of benefits?

v. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find that the Applicant is entitled to the treatment plan dated June 17, 2021 on a statutory basis.

5The physiotherapy treatment plan, dated August 14, 2021, is not reasonable and necessary as a result of the accident.

6The treatment and assessment plans dated April 24, 2020 were denied pursuant to section 38(5) of the Schedule and are not subject to review pursuant to section 38(6).

7No award is payable.

8No interest is payable because the Applicant has not incurred the treatment plan dated June 17, 2021.

BACKGROUND

9The Applicant was the driver of a vehicle which was struck from behind while waiting at a suburban traffic light. She sought no medical attention at the scene of the accident but drove herself to the hospital for examination due to back pain and headaches. She was examined at the hospital which revealed no obvious deformity or trauma to the body, and x-rays showed no fractures. She was discharged from the hospital a few hours later with a prescription for physiotherapy for a neck and back strain.

10At the time of the subject accident, the Applicant was engaging in treatment related to an accident on April 2, 2018. She had ongoing claims due to physical and psychological injuries. She was initially subject to the Minor Injury Guideline (the “MIG”) but found to have sustained psychological injuries as a result of the accident and was no longer subject to the MIG and the $3,500.00 funding limit for a minor injury. She submits that her neck, shoulder, and low back pain were worsened by the accident, as well as her psychological injuries, and claims entitlement to the treatment and assessment plans in dispute. Additionally, she submits that she is entitled to the treatment and assessment plans in dispute on a statutory basis because, according to her, the Respondent failed to comply with section 38(8) of the Schedule.

ANALYSIS

11The onus is on the Applicant to demonstrate that the benefits claimed are reasonable and necessary, or that the Respondent failed to comply with the Schedule, rendering the goods and services payable, if incurred.

$2,014.53 for a driving reintegration assessment, dated June 17, 2021

12I find that the Respondent failed to provide a clear an unequivocal denial of this treatment plan. Accordingly, the Applicant is entitled to the goods and services proposed in this plan and the Respondent is liable to pay for same once incurred and properly invoiced, pursuant to Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”).

13The medical and other reasons for the denial are as follows:

The OCF-18 dated June 17, 2021 recommends a Driving Reintegration Assessment. We have not received any medical records from you family doctor supporting a diagnosis or need for a assessment with this specialty. I do not believe this assessment is reasonably necessary for your accident-related impairments. [sic]

14Pursuant to section 38(8) of the Schedule states that the Respondent must provide the medical and any other reasons for the denial of a medical benefit. Here, the reason is insufficient because it misconstrues the test for entitlement as there is no requirement for a family doctor’s support to find a treatment plan reasonable and necessary. Additionally, there is no evidence demonstrating that the Respondent requested the Applicant’s family physician’s records pursuant to section 33 of the Schedule, prior to the submission of this treatment plan, which would enable the Respondent to deny benefits based on a failure to produce records.

15The denial is a boilerplate denial. The denial does not clearly identify or relate to the nature of goods or services being denied. It does not state what diagnosis it is seeking, nor does it identify the “specialty” that it refers to.

16While the parties disagree on the outcome of a section 38 noncompliance, I agree and adopt the reasoning of Adjudicator Deol in Levoy-Jones v Aviva Insurance Company, 2024 CanLII 43443 (ON LAT). There, the adjudicator differentiated the paths outlined by the Divisional Court in Suarez and in Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (“Catic”). These two cases are binding upon me. Adjudicator Deol stated:

In 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.

This can be distinguished from the Divisional Court decision of Catic, where the court held that treatment must be incurred, in cases where a deficient notice was subsequently corrected by a proper notice. In such situations, only those goods and services that are incurred during a shall-pay period by the applicant are payable by an insurer. In the matter at hand, as the insurer did not rectify its deficient notice, I find that the Divisional Court’s reasoning in Suarez is applicable.

17In this instance, the Respondent has never cured the noncompliant denial. Thus, according to Suarez, the Applicant is entitled to incur the goods and services listed in this treatment and assessment plan and the Respondent is liable to pay for same, once properly invoiced.

$1,117.50 for a physiotherapy treatment plan, dated August 14, 2021

18I find that the physiotherapy treatment plan is not reasonable and necessary as a result of the accident. I further find that the Applicant is not entitled to the plan on a statutory basis.

19The treatment plan holds no persuasive value because it attributes injuries to the Applicant that are not as a result of the subject accident. The treatment plan lists injuries including a concussion, a third-degree whiplash injury which includes neurological symptoms, and fibromyalgia as a result of the accident. It states that one of the goals is to eliminate her concussion symptoms. Yet, the Applicant never sustained a concussion as a result of the accident and her medical record includes no neurological issues.

20I prefer the opinion of Dr. L. Walters, physician, over Dr. N. Al-Jazrawi, physician. Dr. Walters’ assessment and opinion is most contemporaneous to the submission of the plan. Dr. Walters assessed the Applicant on August 26, 2021, with respect to her accident in 2018, but was asked to complete a paper-review report in relation to this physiotherapy treatment plan, related to the subject accident. On the other hand, Dr. Al-Jazrawi assessed the Applicant more than two years later, on September 19, 2023. Dr. Walters concluded that the plan was not reasonable and necessary because the Applicant reached maximal medical improvement in the absence of any physical impairment. Dr. Walters’ opinion is consistent with the records of Dr. M. El Sabawy, family physician, which show no accident-related pain complaints contemporaneous with the submission of the plan.

21I find that the Applicant is not entitled to this plan on a statutory basis. The Applicant submits that the Respondent failed to provide a compliant denial of benefits because it failed to provide a breakdown of the goods and services it agrees to pay for, and those it does not agree to pay for, pursuant to section 38(8) of the Schedule. Her argument is that the denial is invalid because the Respondent never distinguished the individual charges ($997.50 for physical rehabilitation, and $120.00 for documentation) proposed in the plan and only noted the total cost of the plan. She cites G.P. v. Wawanesa Insurance Company, 2022 CanLII 45306 (ON LAT) as an authority on this issue.

22The Applicant is not entitled to the plan on a statutory basis because the Respondent complied with section 38(8) when it denied funding for this plan. The case cited is not binding upon me and I decline to adopt the reasoning in it. Here, in the Applicant’s case, the denial identified that the amount payable is $0.00 for the plan proposing physical treatment, in the amount of $1,117.50. The Respondent is not obliged to provide a breakdown mirroring the plan, line for line, if it is denying the plan entirely. Rather, the Respondent is obliged to provide a clear and unequivocal denial with sufficient medical and other reasons to permit the Applicant to make an informed decision whether to dispute the denial. There is no dispute that the Respondent provided sufficient medical and other reasons, as well as the amount it refuses to pay, thus I find it has complied with its obligations pursuant to section 38(8) of the Schedule.

$2,066.53 for a chiropractic treatment plan, dated April 24, 2020; and

$2,043.00 for assistive devices proposed in a treatment plan, dated April 24, 2020?

23I find that these plans were properly denied pursuant to section 38(5) of the Schedule and are not subject to review, pursuant to section 38(6).

24Section 38(5) provides that the Respondent may refuse to accept a treatment plan that proposes goods and services outside of the MIG when an insured is entitled to goods and services within the MIG. Here, the Respondent refused to accept the treatment and assessment plan and, instead, advised the Applicant to submit a treatment confirmation form, pursuant to the MIG. The Respondent also advised that treatment pursuant to the MIG is pre-approved for up to $2,200.00 in treatment and may begin immediately.

25There is no dispute that the Applicant was initially subject to treatment within the MIG following her accident. These treatment and assessment plans were submitted during that period, prior to the Applicant engaging in any treatment pursuant to the MIG. It is incumbent on insureds to engage in treatment pursuant to the MIG, until they can demonstrate otherwise that they sustained injuries that are not included in the minor injury definition in section 3 of the Schedule.

26Section 38(6) provides that such a refusal under section 38(5) is not subject to review. Thus, I have no jurisdiction to interfere with this denial.

Interest

27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The Applicant has not incurred the goods and services proposed.

Award

28The 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.

29I find no award payable. The Applicant’s claim for an award flows from the Respondent’s refusal to pay the treatment and assessment plans in dispute. The non-compliant denial does not warrant an award. I attribute the non-compliance to an error in adjusting the claim, and not to unreasonable, imprudent, inflexible, stubborn, or unyielding behaviour which would warrant an award.

Conclusion and ORDER

30The Applicant is entitled to the treatment plan dated June 17, 2021 on a statutory basis.

31The physiotherapy treatment plan, dated August 14, 2021, is not reasonable and necessary as a result of the accident.

32The treatment and assessment plans dated April 24, 2020 were denied pursuant to section 38(5) of the Schedule and are not subject to review pursuant to section 38(6).

33No award is payable.

34No interest is payable because the Applicant has not incurred the treatment plan dated June 17, 2021.