Licence Appeal Tribunal File Number: 21-013663/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:
Libertie Bambie Levoy-Jones
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Jacob Sazio, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: By way of written submissions
OVERVIEW
1Libertie Bambie Levoy-Jones, (the “applicant”) was involved in an automobile accident on June 23, 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 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 $1,654.48 for physiotherapy and massage services, proposed by Physio In Motion in a treatment plan/OCF-18 (“OCF-18”) dated December 9, 2020?
ii. Is the applicant entitled to $2,200.00 for a Worksite Assessment and Job Demands Analysis, proposed by Geronimo O.T. in an OCF-18 dated June 16, 2021?
iii. Is the applicant entitled to $3,205.34 for chiropractic treatment and assistive devices, proposed by Dr. DiFrancesco in an OCF-18 dated December 14, 2021?
iv. Is the applicant entitled to $2,896.56 for chiropractic services, proposed by Dr. DiFrancesco in an OCF-18 dated May 28, 2022?
v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is entitled to the OCF-18, dated December 9, 2020, for physiotherapy and massage services, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent’s failure to comply with s. 38 of the Schedule.
ii. The applicant is entitled to the OCF-18s, dated December 14, 2021, and May 28, 2022, for chiropractic treatment and assistive devices, and chiropractic services, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent’s failure to comply with s. 38 of the Schedule.
iii. The applicant is entitled to an OCF-18, dated June 16, 2021, proposing a Worksite Assessment and Job Demands Analysis, plus interest in accordance with s. 51 of the Schedule.
iv. The respondent is not liable to pay an award.
ANALYSIS
The Treatment Plans
4To 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.
5Where an insurer has not properly denied a treatment plan in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.
6The applicant submits that the respondent was non-compliant with s. 38(8) for all the OCF-18s in dispute, apart from the OCF-18 for a Worksite Assessment and Job Demands Analysis, as the denial letters are deficient due to a lack of reasons. Moreover, the applicant relies upon the authority of Mattina v. Federated Insurance Company of Canada, 2020 CanLII 101808 (ON LAT) to support her position that under s. 38(11), the benefits do not need to be incurred to be payable.
7Alternatively, she submits that if the Tribunal finds that the benefit must be incurred under s. 38(11), that she should be entitled to all benefits incurred up until the date that the respondent corrects its deficient notices.
8Meanwhile, the respondent submits that it provided adequate medical and all other reasons why the services were not reasonable and necessary under s. 38(8) of the Schedule with the information that was available at that time. Its position is that it cannot be required to provide more information than it has at the time of the denial. Finally, the respondent argues that the applicant has not provided any proof that the OCF-18s have been incurred during the period prescribed in s. 38(11)(2). To this end, it relies upon the authority of: 17-002301 v. The Personal Insurance Company, (“17-002301”) 2017 CanLII 77345 (ON LAT).
The OCF-18 for physiotherapy and massage services, dated December 9, 2020 is payable pursuant to s. 38(11)
9I find that the denial letter dated December 24, 2020, was non-compliant with s. 38(8) of the Schedule.
10In the December 24, 2020 letter, the respondent advised the applicant that it did not agree to pay for the proposed physiotherapy and massage services for the following reasons:
“We have reviewed the above noted document submitted to Aviva. We have determined these expenses are not payable under the Statutory Accident Benefits Schedule. An insurer’s examination regarding similar treatment determine that ongoing treatment of this nature is not reasonable and necessary. We regret that we are unable to consider funding this treatment.”
11I find that the December 24, 2020 denial letter does not comply with the requirements under s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18. Further, the reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule. Indeed, no specific details about the applicant’s diagnosis, prognosis, or the details of the treatment plan were provided, nor did the respondent identify what information it required. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.
12I am also not persuaded by the respondent’s position that this denial letter provided adequate reasons as it was based on the information it had at the time of the denial. In my opinion, the respondent had possession of an insurer’s examination as this is clearly stated in its denial letter, and therefore, it should have provided information to identify the report, and provide meaningful details, such as what similar treatment was proposed previously. Instead, the denial letter relies on an unidentified report and lacked meaningful details of which similar treatment had been denied in the past, and why. Moreover, the respondent could have identified the information it required from the applicant about her condition, but it chose not to do so.
13I am not bound by the authority of 17-002301, nor do I find it persuasive. In any event, the respondent had the information of the insurer’s examination that it relied on to deny the OCF-18, but it failed to provide meaningful details of this report to the applicant.
14Accordingly, I find that the respondent’s denial letter, dated December 24, 2020, is non-compliant with s. 38(8) of the Schedule, and the respondent has not pointed me to correspondence that cures this deficient denial letter.
15The parties disagree on the issue of whether a treatment plan must be incurred in order to be payable in cases involving s. 38(8) noncompliance. Section 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. I am not bound by either of the authorities referred by the parties. While, the parties did not refer me to these Divisional Court decisions, I am bound by them: Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), and Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (“Catic”).
16In 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.
17This 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.
18As such, I find the OCF-18 for physiotherapy and massage services to be payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
The OCF-18s for chiropractic treatment, and assistive devices and chiropractic services, dated December 14, 2021, and May 28, 2022 are payable pursuant to s. 38(11)
19I find that the respondent’s denial letters, dated December 16, 2021, and May 30, 2022, were non-compliant with s. 38(8) of the Schedule.
20In the December 16, 2021, denial letter, the respondent provided the following reasons for denying the OCF-18 for chiropractic treatment and assistive devices:
“We have reviewed the above noted document submitted to Aviva. We have determined these expenses are not payable under the Statutory Accident Benefits Schedule. A recent insurer’s examination by Dr Hosseini on 2021/09/19 indicated that you do not appear to have any ongoing impairment. From a musculoskeletal perspective, you have reached maximum medical improvement. As a result, Aviva will not fund the above noted treatment plan.”
21I find that this denial letter does not comply with the requirements under s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18. While the respondent references a recent insurer’s examination, it did not adequately advise the applicant, why the proposed services are not reasonable and necessary. Nor does the denial letter adequately advise the applicant why the specific recommendations made in the OCF-18 are being denied based on the insurer’s examination.
22Likewise, it does not appear that the respondent enclosed a copy of the insurer’s examination with the denial letter. I find that this denial is vague and does not provide adequate reasons to the applicant on why the proposed services are being denied based on the recent insurer’s examination. I also agree with the applicant that the insurer’s examination referenced in this letter did not even address the proposed services, but rather addressed whether other OCF-18s were reasonable and necessary.
23The respondent should have clearly stated why the proposed services were being denied based on the recent insurer’s examination. Instead, the applicant was advised that it appears she has no ongoing impairment and that she has reached maximum medical recovery, however, no reasons were provided on how this information made the proposed services not reasonable and necessary. As such, I find that this denial letter is not clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.
24Once again, I am not persuaded by the respondent’s position that this denial was based on the information it had at that time, and as such, it is compliant with s. 38(8). Here, as noted above, the respondent should have advised the applicant why the OCF-18 was not reasonable and necessary based on the insurer’s examination. Also, as noted above, the respondent could have identified the information it requires from the applicant about her condition, which would have been compliant with s. 38(8) of the Schedule.
25Next, in the May 30, 2022, denial letter, the respondent denied the OCF-18, dated May 28, 2022, for the following reasons:
“We have reviewed the above noted document submitted to Aviva. We have determined these expenses are not payable under the Statutory Accident Benefits Schedule. A 2020/03/23 and a 2021/08/19 insurer’s assessment found that there was no ongoing impairment related to the motor vehicle accident. As a result, Aviva will not fund the above noted treatment plan.”
26I find that this denial letter is non-compliant with s. 38(8), as it is vague and provided inadequate medical reasons. I acknowledge that the respondent referred to two insurer’s assessments and advised the applicant that these reports found no ongoing impairment. However, once again, the denial letter, did not advise why the proposed services in the OCF-18 are not reasonable and necessary based on these reports. The respondent also did not enclose a copy of the reports with the denial letter.
27Significantly, the respondent provided no explanation on why it concluded that the OCF-18 was not reasonable and necessary. In my interpretation, simply referring to insurer examination reports and stating that the applicant has no ongoing impairment is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. This also does not serve the Schedule’s consumer protection goal.
28Consequently, the provisions set out in s. 38(11) of the Schedule are triggered, and as such, the OCF-18s dated December 14, 2021, and May 28, 2022, are payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
The Worksite Assessment and Job Demands Analysis is reasonable and necessary
29I find that the applicant has established on a balance of probabilities, that the proposed OCF-18 for a Worksite Assessment and Job Demands Analysis is reasonable and necessary.
30The applicant argues that since January of 2021, she has been working from home on a partial basis. Furthermore, she submits that she does not have a home office and has been working from a laptop at her dining room table. This has resulted in an aggravation of her back pain. As such, the applicant submits that both Ms. Joanna Wojcik, occupational therapist and Dr. Dinesh Kumbhare, physiatrist, have recommended a worksite assessment.
31In response, the respondent argues that the applicant’s back pain is not as a result of the accident due to her gap in reporting her pain to her family physician, Dr. Hussam Taha. Furthermore, the respondent submits that the OCF-18 is not reasonable and necessary as the applicant works from home due to the COVID-19 pandemic and has self-reported to s. 44 assessor, Dr. Seyed Hossein Hosseini, physiatrist that she has an ergonomic set up at home.
32As the respondent raised a causation issue with respect to the applicant’s back pain, I will be addressing this first. The applicant has established on a balance of probabilities that the accident was a necessary cause of her back pain. I agree with the respondent that there is a significant gap in the applicant’s reporting of back pain to Dr. Taha, as the applicant’s next report of back pain after July 9, 2019, was not until November 16, 2021. However, Dr. Taha, Ms. Wojcik, and Dr. Kumbhare have all concluded that the applicant has back pain from the accident. As such, the applicant has produced three medical opinions that link the subject accident and her back pain.
33Notably, the s. 44 assessor, Dr. Hosseini, also opined that the applicant had thoracolumbar spine sprain, and strain, as a direct result of the accident. I further acknowledge that the respondent speculates that the applicant’s back pain may be due to pregnancy or carrying a baby and a toddler. However, I am not persuaded by these speculations, especially when there are four medical opinions that state otherwise. As such, I find that the accident was a necessary cause of the applicant’s back pain.
34Now turning to whether the Worksite Assessment and Job Demands Analysis is reasonable and necessary, I find that it is.
35First, the applicant has consistently self-reported to Ms. Wojick, Dr. Kumbhare, Dr. Hosseini, and Dr. Taha that prolonged sitting results in an aggravation of back pain. Moreover, the applicant has reported to all these medical professionals that she works at a desk job, which makes her back pain worse. In particular, she has reported to Dr. Wojick, Dr. Kumbhare, and Dr. Hosseini, that despite having an ergonomic chair, that was provided by work, she still experiences back pain after working all day.
36I am not persuaded by the respondent’s arguments that the applicant works from home as a result of the COVID-19 pandemic, and therefore it implies that the OCF-18 is not reasonable and necessary. Regardless of whether the applicant is working from home due to the pandemic, the fact remains, that prolonged sitting results in back pain, which was caused by this accident. Thus, in my view, it would be reasonable and necessary for the applicant to explore whether there are any other ergonomic measures that can be applied for her work-environment.
37Second, both Ms. Wojick and Dr. Kumbhare have recommended the proposed assessment. While I am alive to the respondent’s submissions that the applicant has not provided evidence contemporaneous to the OCF-18, I disagree. On February 22, 2021, (approximately 4 months before the proposed OCF-18 was submitted), Ms. Wojick, noted that the applicant works from home four days out of the week, and does not have a home office. Moreover, the applicant self-reported that she was working from a laptop from her couch or kitchen table, which aggravated her back pain. As such, Ms. Wojick was concerned that the applicant’s back pain would be further aggravated due to the poor office ergonomics. Ms. Wojick also noted that an ergonomic office chair was going to be provided by the applicant’s workplace, and if this did not sufficiently address the applicant’s pain, then this proposed assessment was recommended.
38Subsequently, on July 26, 2021, Ms. Wojick, met with the applicant and noted that an OCF-18 had been submitted for the proposed assessment. Also, Ms. Wojick, noted that the applicant continued to have back pain, despite using the ergonomic office chair.
39This is also consistent with what the applicant reported to Dr. Kumbhare on November 28, 2022, who also recommended this assessment. I am not persuaded by the respondent’s argument that since Dr. Kumbhare’s report was prepared for the purposes of her tort claim, it should be given little weight. While the report was prepared solely for the purpose of her tort claim, Dr. Kumbhare was asked to provide his medical opinion with respect to the applicant’s accident-related injuries and recommended treatment. In other words, while the report was prepared for tort purposes, it still provides information that is relevant to the issue of whether this assessment is reasonable and necessary. As such, I find it both relevant and persuasive.
40Finally, I am not persuaded by the report of Dr. Hosseini, dated August 19, 2021. First, Dr. Hosseini diagnosed the applicant with a thoracolumbar spine sprain and strain, and even noted that the applicant may require muscle relaxants and trigger point injections. Second, Dr. Hosseini provides no rationale on why the applicant’s self-reporting with respect to her back pain from prolonged sitting is insufficient to establish the OCF-18 is reasonable and necessary, other than stating that there is no objective evidence. In my opinion, the applicant’s self-reporting has been consistent, and significantly, tenderness was noted over the interscapular region and bilateral thoracolumbar paraspinal musculature by Dr. Hosseini.
41Lastly, the applicant self-reported to Dr. Hosseini that her back pain was worst after working all day, therefore I am not persuaded by the respondent’s position that she already has an ergonomic set up at home. While the applicant has been provided with a chair from her workplace, she has also consistently reported to various assessors that she continues to have back pain.
42As the respondent has not raised issues with the proposed costs associated with the Worksite Assessment and Job Demands Analysis. I have no reason to think that the costs associated with this assessment are unreasonable.
43For these reasons noted above, I find that a Worksite Assessment and Job Demands Analysis to be reasonable and necessary.
The applicant is entitled to Interest
44Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As I have found that all the OCF-18s in dispute are payable, interest is also payable on those outstanding benefits.
The respondent is not liable to pay an Award
45I find that the applicant has failed to meet her evidentiary onus to establish that she is entitled to an award or interest.
46Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
47It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.
48The applicant submits that the respondent closed its mind to other information available to it that may have affected its decision. First, it submits that with the exception of the OCF-18 for a Worksite Assessment and Job Demands Analysis, the respondent did not request s. 44 assessments for the other OCF-18s. Second, the respondent continued to rely upon Dr. Hosseini’s report, despite the applicant being diagnosed with myofascial pain syndrome.
49The respondent submits that it did not unreasonably withhold or delay payment of benefits or act in bad faith. It argues that it did not delay or withhold payment of the OCF-18s by relying on the medical opinion of its assessors. Moreover, it submits that it reviewed the updated medical records provided, however these records were not contemporaneous to the issues in dispute. Lastly, it argues that there is no obligation under the Schedule to conduct an insurer’s examination, whenever it obtains updated records.
50I find that the applicant has not established that the respondent unreasonably withheld or delayed the payment of the OCF-18s in dispute. Although I have found that the applicant was entitled to the treatment plans in dispute, I note that insurers are not held to a standard of perfection. It is well-settled law that an award should not be ordered simply because an insurer made an incorrect decision. The insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Here, the respondent relied upon its assessors reports, which it is entitled to do so.
51Next, I disagree with the applicant’s position that the respondent is required to conduct an insurer’s examination for every treatment plan that is submitted. The applicant did not refer me to a section of the Schedule that requires this action by the respondent for every treatment plan that gets submitted. Accordingly, I am not persuaded that this warrants an award.
52Also, I agree with the respondent that the applicant was diagnosed with myofascial pain syndrome after Dr. Hosseini’s report was completed. Moreover, I acknowledge that the respondent has an ongoing obligation to assess the claim, however I would reiterate that insurers are not required to seek an IE for every piece of new evidence.
53I am not persuaded by the applicant’s submissions with respect to an unrelated OCF-18 that is not in dispute before me. I acknowledge her submissions that this unrelated OCF-18 was denied based on Dr. Hosseini’s report, and then the denial was set aside on April 13, 2020. However, I am not persuaded that this amounts to an unreasonable and arbitrary approach as alleged. As noted above, the respondent has an ongoing obligation to assess the claim, which is exactly what it did here.
54To end, despite the applicant’s submissions, Dr. Hosseini did consider the applicant’s subjective pain complaints, however he opined that due to a lack of objective evidence, the applicant’s worksite assessment and job demands analysis was not reasonable and necessary. In any event, as noted above, a s. 10 award is not meant as punishment for arriving at a wrong conclusion.
55In conclusion, the respondent is not liable to pay an award.
ORDER
56For the reasons outlined above, I find that:
i. The applicant is entitled to the OCF-18, dated December 9, 2020, for physiotherapy and massage services, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent’s failure to comply with s. 38 of the Schedule.
ii. The applicant is entitled to the OCF-18s, dated December 14, 2021, and May 28, 2022, for chiropractic treatment and assistive devices, and chiropractic services, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent’s failure to comply with s. 38 of the Schedule.
iii. The applicant is entitled to an OCF-18, dated June 16, 2021, proposing a Worksite Assessment and Job Demands Analysis plus interest in accordance with s. 51 of the Schedule.
iv. The respondent is not liable to pay an award.
Released: May 15, 2024
__________________________
Tanjoyt Deol
Adjudicator