Citation: Evangelista v. Aviva Insurance Company, 2024 ONLAT 22-014156/AABS

Licence Appeal Tribunal File Number: 22-014156/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:

Lydia Evangelista

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Andrea L. Bandow, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lydia Evangelista (“the Applicant”) was involved in an automobile accident on June 10, 2019, 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”). The 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

2The issues in dispute are:

i. Is the Applicant entitled to medical benefits proposed by Imperial Medical Assessments Inc. as follows: (1) $2,486.00 for an orthopaedic assessment plan, dated April 21, 2022; (2) $2,486.00 for a chronic pain assessment plan, dated April 25, 2022; (3) $2,486.00 for a neurological assessment plan, dated June 1, 2022; (4) $2,045.88 for an attendant care assessment plan, dated June 1, 2022; (5) $2,486.00 for a hyperbaric oxygen assessment plan, dated August 3, 2022; (6) $2,200.00 for a social work assessment plan, dated September 19, 2022; (7) $2,662.00 for assistive devices proposed in a plan dated July 21, 2022; and (8) $2,485.99 for a physiatry assessment plan, dated July 19, 2022?

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

RESULT

3I find that the Applicant has not met her onus to demonstrate entitlement to the benefits claimed. No interest is payable because no benefits are payable.

BACKGROUND

4The Applicant’s submissions do not address the merits of her claims.

5The Applicant claims entitlement to the treatment and assessment plans in dispute on a purely statutory basis. She submits that the Respondent has failed to comply with its response obligations outlined in section 38 of the Schedule. She submits that she is entitled to the treatment and assessment plans in dispute as a result of the Respondent’s failure to comply.

6The Respondent submits that it complied with the Schedule and that the Applicant has not demonstrated entitlement to the benefits claimed.

Preliminary issue

The Applicant exceeded the page limits

7The Applicant’s submissions total nearly 12 pages, inclusive of almost two pages of endnotes. This is contrary to the Tribunal Order, which limited written submissions to 10 pages. The Order does not permit the Applicant to exceed the page limit with endnotes. Instead, it advised that evidence and case law are not subject to the page limit – not footnotes.

8I do not need to apply a remedy for the Applicant’s breach of the Tribunal order because it is unnecessary. As I will explain below, the Applicant’s submissions neglect to address the issues, nor the deficiencies in the Respondent’s denials. Thus, she has not met her onus to demonstrate entitlement to the benefits claimed.

9Additionally, I find that the Applicant incorrectly appended additional submissions as an exhibit for this hearing, resulting in a further breach of the page limit. The Applicant submits as evidence, a chart created to address what she perceives to be the rationale for the Respondent’s denials, together with her comments on the rationale. Making submissions through appended evidence is contrary to the Tribunal’s order, and has the affect of extending the page limit for submissions. The Applicant’s comments on the rationale for the denials are imperative to her claim that the Respondent failed to comply with its obligations outlined in the Schedule. Thus, they should be included in her submissions – not within the evidence appended to her submissions.

10The remedy for the Applicant’s breach of the Tribunal order is that I will not consider the submissions rendered in the appended chart. The Tribunal order is clear in that the Applicant’s submissions should not exceed 10 pages. This is not to say that parties are prohibited from making submissions in the form of a chart – occasionally it is the best form to make submissions on a particular issue. However, such submissions must be included within the page limit provided by the Tribunal. Here, the Applicant exceeded the page limit by rendering submissions in an appended chart as if it were evidence. I have accepted her 10 pages of submissions and have excluded the submissions in the appended chart.

11Instead of including her comments on the Respondent’s denials in her submissions, the Applicant, via her counsel, spent several pages of submissions reiterating the findings of Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (“Taksali”). Taksali is a parallel tribunal decision and is not binding upon adjudicators at the Tribunal. Moreover, Taksali erroneously concluded that a non-compliant notice of an insurer’s examination (“IE”) caused the resulting IE report to be void ab initio. The conclusion in Taksali failed to consider that the remedy for an insufficient IE notice is that the Applicant is not obligated to attend the examination.

12In this case, the Applicant attended at the IEs. Having attended at the IEs, the Applicant’s position becomes moot as she has eliminated the remedy and demonstrated that she had sufficient information to make a decision whether to pursue her claim for benefits and attend the IE, or not. She chose to attend at the IE.

13It is imperative that parties to a dispute before the Tribunal follow the orders issued by the Tribunal. The principles of natural justice provide that parties have a right to a fair hearing. Deviating from the Tribunal order distorts the hearing process, rendering it unfair or imbalanced. Insured persons who seek entitlement to benefits by challenging an insurer’s compliance with the Schedule must also comply with the Schedule and Tribunal orders. Failing to do so, as is the case here, is fatal to the overall claim.

The Applicant has not met her onus to demonstrate entitlement to the benefits

14The Applicant has not met her onus to demonstrate entitlement to the benefits claimed because she has not provided a rationale for her position within her submissions. It is trite law that the onus rests with the Applicant in demonstrating on a balance of probabilities that she is entitled to the benefits.

15Additionally, I find that the Respondent has provided clear and unequivocal denials that comply with the compulsory obligations outlined in section 38 of the Schedule.

16The orthopaedic and chronic pain assessment plans were denied by letter dated May 4, 2022. That letter states that the Respondent refuses to pay for the assessments and is unable to determine if the assessments are reasonably required for the injuries received in the accident. The letter also notes a lack of medical evidence on file to support the need for the assessments, and that the medical records reviewed indicate predominantly soft-tissue injuries.

17The neurological and in-home assessment plans were denied on June 15, 2022. That letter notes that the Respondent will not fund the plans and states that it is unable to determine if the assessments are reasonably required as a result of the accident, and notes that the medical records on file indicate that the Applicant sustained soft tissue injuries and there is no other information that changes the diagnosis, that would warrant the assessment.

18The plan for a hyperbaric chamber assessment was denied on August 22, 2022. In that letter, the Respondent advised that it is unable to pay the goods and services because the provider uses unusual, novel, alternative, experimental, or otherwise questionable treatment techniques that may not have scientifically proven therapeutic or diagnostic value. While this denial does not include medical reasons, it is compliant because it provides the reason for a denial, which it won’t fund experimental treatment. As noted in Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, the Respondent is not required to create a medical reason for a denial where one does not exist.

19The social work assessment plan was initially responded to by letter dated October 3, 2022 when the Respondent advised that it had insufficient medical evidence on file to support the need for a social work assessment and requires a second opinion in the form of an IE. The Respondent further clarified the denial in a letter dated November 23, 2022. In that letter, the Respondent provided the IE report of Dr. Oshidari and Dr. M. Sirota, dated November 11, 2022, and advised that it will not fund the assessment because it is not reasonable and necessary for the injuries sustained in the accident. The November 11, 2022 letter further states that the assessors recommended cognitive behavioral therapy for her anxiety and depressive symptoms and possibly trauma therapy, and that it was agreeable to fund these recommendations, and invited the Applicant to submit a treatment plan for those services.

20The assistive devices plan was initially responded to on August 12, 2022. In that letter, the Respondent refused to pay for any amounts of the plan and incorrectly noted that it had no evidence for a physiatry assessment. The Respondent clarified the denial in a letter dated October 24, 2022. In that letter, the Respondent maintained that it refused to pay for any of the goods and services proposed in the plan and referred to the insurer’s examination assessment report, dated October 13, 2022. It relied on the opinion of the assessors that the devices were not reasonable and necessary from the injuries sustained in the accident.

21The physiatry assessment plan was denied on August 4, 2022. The Respondent refused to pay for any amounts of the plan and noted that it had insufficient information to support the need for a physiatry assessment. The letter notes that the records indicate soft-tissue injuries, and it received no medical information to support any change to this diagnosis that would warrant a physiatry assessment.

22The Applicant has led no evidence indicating that she incurred the goods and services in dispute. Accordingly, she is not entitled to any benefits from a statutory perspective, as it relates to the timing of the Applicant’s denials.

Interest

23Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. No interest is payable as no benefits are owed and no payments went overdue.

CONCLUSION AND ORDER

24The Applicant has not demonstrated that she is entitled to the benefits claimed.

25No interest is payable as no benefits are payable.

26The Application is dismissed.