Bouganim v. Aviva Insurance Company of Canada, 2024 CanLII 70373

Bouganim v. Aviva Insurance Company of Canada, 2024 CanLII 70373

Citation: Bouganim v. Aviva Insurance Company of Canada, 2024 ONLAT 22-009376/AABS

Licence Appeal Tribunal File Number: 22-009376/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:

Mathew Bouganim

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Gareth Neilson

APPEARANCES:

For the Applicant:

Eric Sabbah, Counsel

For the Respondent:

Frank Comella, Counsel

Court Reporter:

Micha Salazar

Heard by Videoconference:

February 5, 2024

OVERVIEW

1Mathew Bouganim, the applicant, was involved in an automobile accident on February 22, 2018, 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 the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Is the applicant barred from proceeding to a hearing for the following benefits: items i. through iv. below, because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $140.00 per week from February 20, 2018 to January 1, 2020, which was denied on April 2, 2019? Note: The applicant adjusted the quantum of the IRB claim from $400.00 per week to $140.00 per week.

ii. Is the applicant entitled to $25,869.22 for chiropractic, psychological, acupuncture, and massage therapy services, proposed by Newmarket Wellness in a treatment plan/OCF-18 (“plan”) dated September 17, 2019, denied on April 20, 2020?

iii. Is the applicant entitled to $191.66 ($2,198.80 less $2,007.14 approved) for psychological services, proposed by Newmarket Wellness in a treatment plan dated January 25, 2019, denied on April 20, 2020?

Is the applicant entitled to $502.68 ($2,198.80 less $1,696.10 approved) for a psychological assessment, proposed by Imperial Medical Assessment in a treatment plan dated October 17, 2018, denied on January 30, 2019?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

vi. Is the respondent entitled to its costs? Note: Added on consent.

RESULT

4On the preliminary issue, I find that the applicant is barred from proceeding with issues i. and iv. as listed in paragraph 3 above but may proceed with issues ii. and iii..

5On the substantive issues, I find that:

i. the applicant is not entitled to $25,869.22 for chiropractic, psychological, acupuncture, and massage therapy services.

ii. the applicant is not entitled to $191.66 ($2,198.80 less $2,007.14 approved) for psychological services.

iii. The applicant is not entitled to an award.

iv. The applicant is not entitled to interest.

v. The respondent is not entitled to its costs.

ANALYSIS

The applicant’s claims for income replacement benefits and a psychological assessment are time-barred

6Section 56 of the Schedule provides that an application to dispute the denial of a benefit shall be commenced within two years of the insurer’s refusal to pay said benefit.

7The respondent submits that the applicant filed his Tribunal application on August 23, 2022, which is outside the statutory requirement to file for the issues in dispute. The respondent argues that there was no evidence of a bona fide intention to appeal and that the respondent has been prejudiced by the length of delay as they have had to rely on older IE reports to prepare for the hearing. The respondent also argued that the applicant should not qualify for the Covid-19 extension (temporary suspension of limitation periods under O. Reg. 73/20 under the Reopening Ontario Act, 2020, S.O. 2020, c. 17.) because the denials were submitted to the applicant before the Covid-19 extension came into effect. Lastly, the respondent argued that all denials were issued in accordance with the SABS and that the denials were proper and clear.

8The applicant has not made submissions as to why the Tribunal should exercise its discretion under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1990, c. 12, Sched. G in accordance with the factors set out in Manuel v. Registrar, 2012 ONSC 1492. As the applicant bears the onus of demonstrating that a discretionary extension of the limitation period should be granted, I decline to exercise my authority to do so.

9The applicant relies on the Examination Under Oath (“EUO”) which the applicant undertook on July 21, 2020. The applicant argues that the respondent requested on June 23, 2020 that the applicant submit to an EUO and that this request re-opens the file and therefore no proper or unequivocal denial has been given. The applicant continues that since the respondent did not provide a second denial after the EUO, the timeline to file an appeal for accident benefits from the LAT is extended until a proper denial is issued. Lastly, the applicant argues that the Covid-19 extension does apply to the issues in dispute and that the Covid-19 extension should be granted.

10I find that O. Reg 73/20 which was enacted on March 20, 2020 applies to issues ii. and iii. As listed in paragraph 3 above but does not apply to issues i. and iv. This regulation, which was implemented as a result of the Covid-19 pandemic, suspended limitation periods retroactively form March 16, 2020. The regulation was in force for 183 days, between March 16, 2020 and September 14, 2020. As a result, a limitation such as the two-year period specified in s. 56 of the Schedule is automatically extended by 183 days subject to the discretion of a court or tribunal to order otherwise.

11The Tribunal's authority to extend the limitation period under O. Reg. 73/20 was affirmed in McAuley v Canada Post Corporation, 2012 ONSC 4528, where the Ontario Superior Court of Justice found that O. Reg. 73/20 extended all running limitation periods by 183 days.

12I find that the respondent’s denials were unequivocal and clear and I do not accept the applicant’s argument that the EUO re-opens the limitation period. The fact that the insurer needed to gather the information they deemed necessary to continually adjust the file does not mean that the original denials are overridden. In fact, the insurer has the duty to continue to adjust the file during the life cycle of the applicant’s claim.

13The applicant filed his Tribunal application on August 23, 2022.

14In this case, the limitation period for disputing the denial of income replacement benefits is extended to October 8, 2021. Therefore, the applicant’s claim for income replacement benefits is time-barred under s. 56 of the Schedule and cannot proceed before the Tribunal. The limitation period for disputing the denial of the psychological assessment is extended to August 2, 2021. Therefore, the applicant’s claim for a psychological assessment is time-barred under s. 56 and cannot proceed.

15I find that the limitation period for disputing the denial of chiropractic, psychological, acupuncture, and massage therapy services is extended to October 30, 2022. Therefore, the applicant’s claims for these benefits can proceed.

16I find that the application period for psychological services is extended to October 30, 2022 and therefore can proceed.

PROCEDURAL ISSUES

17The applicant asked for the adjudicator to hear an oral motion regarding summonsing witnesses. The applicant argued that they were prejudiced by not being able to summons witnesses. A 15-minute recess was called.

18Under section 8.2 of the Licence Appeal Tribunal Rules (August 21, 2023), the motion to issue summonses was denied. The Tribunal rules are clear that a “summons must be served on the person summoned no later than 10 days before the hearing”. The applicant had time to file the proper summons paperwork with the Tribunal. In fact, this hearing was originally scheduled for November 20, 2023 and was adjourned for almost two months. The applicant did not comply with section 8.2 of Licence Appeal Tribunal Rules (August 21, 2023) regarding the summons of a witnesses and therefore the request was denied.

19The applicant was the driver of a tow truck that was parked in a parking lot. The applicant’s vehicle was struck by a dump truck and the applicant was hurt trying to jump from the driver’s seat to the passenger seat. The police were called but the applicant did not go to the hospital right after the accident. The applicant complained about lower back pain and right hip pain.

20The applicant has a significant pre-accident medical history as well as two motor vehicle accidents after the subject accident. It is the applicant’s onus to prove on the balance of probabilities that the treatment plans in dispute are reasonable and necessary.

Is the applicant entitled to $25,869.22 for chiropractic, psychological, acupuncture, and massage therapy services, proposed by Newmarket Wellness in a treatment plan/OCF-18 (“plan”) dated September 17, 2019, denied on April 20, 2020?

21I find that the applicant is not entitled to $25,869.22 for chiropractic, psychological, acupuncture and massage therapy because they did not prove on the balance of probabilities that the treatment plan in dispute is reasonable and necessary as a result of injuries sustained in the accident.

22The applicant relied on oral evidence of the applicant, Clinical Notes and Records, from Newmarket Health and Wellness and a Chronic Pain Assessment made by Dr. Wilderman dated October 28, 2019.

23The applicant testified that he did not go to the hospital immediately following the accident, but he did have pain in his back and was struggling with psychological issues. The applicant testified that he received some psychological treatment from Imperial Health following the accident and he felt the treatment was helpful. The applicant also testified that after the accident his psychological functioning deteriorated to the point where his relationship with his wife became strained.

24The applicant did also admit to having pre-accident pain management issues for which he had been prescribed medical marijuana. The applicant also described a significant abdominal surgery that had taken place before the accident as well as testifying that he had back and hip pain before the subject accident. It is important to note that the applicant testified that he had a slip and fall in January 2018, before the subject accident and had two further motor vehicle accidents in November 2018 and in August 2021. The applicant settled the 2021 claim with the insurer and has been receiving treatment for hip and back pain. The applicant was also diagnosed with fibromyalgia in December 2021.

25The CNRs from Newmarket Wellness paint a picture of the applicant being in pain and needing treatment. According to Dr. Gale, who is a pain specialist, the applicant had complained of back pain for “years” and had “degenerative disc disease”. The proposed treatment plan in question is based on Dr. Wilderman’s conclusion from his chronic pain assessment. Dr. Wilderman concluded that the applicant had “Chronic Pain Syndrome, Chronic WAD 2, Myofacial pain syndrome in the Mechanical Low Back Pain, Lumbago, Bilateral SI dysfunction, Chronic Post-Traumatic Headaches, Impingement Syndrome of the Shoulder, Bursitis of the Shoulder, Rotator Cuff Syndrome”. Dr. Wilderman then suggested treatment that would include “psychological chronic pain assessment, socio-emotional assessment, intensive chronic pain program, one-on-one gym training, aquafit program, psychotherapy assessment and treatment and orthotics”.

26The respondent relies primarily of the Assessments of Dr. Gelman, Dr. Lee and surveillance of the applicant.

27The February 21, 2019 report of Dr. Gelman found that the applicant likely had sustained “strain/sprain injuries to his cervical spine and lumbar spine” and that the applicant reports “various musculoskeletal symptoms and I cannot temporally correlate these to the subject accident”. Gelman also reported that the applicant “was a very poor historian in regards to his various symptoms. He was somewhat unclear on the timelines on when symptoms arose and whether they arose from his various car accidents or his slip and fall.”

28Dr. Gelman also saw the applicant on February 6, 2020 and found that he “continues to report diffuse musculoskeletal symptoms, and I continue to have difficulty correlating these with any specific objective pathology in my physical examination. As well, it is difficult to correlate these to any specific incident, and it is difficult to tell which of these symptoms arose from which trauma. As best I can tell, I would conclude that he sustained strain/sprain injuries to his cervical and lumbar spine.”

29Dr. Lee also assessed the applicant twice. On March 14, 2019 he found that the applicant suffered from Adjustment Disorder and should be removed from the Minor Injury Guideline. However, Dr. Lee did opine that pain seems to be the most significant barrier to returning to pre-accident function. In the second report dated February 25, 2020, Dr. Lee also reported that the applicant is a poor historian and that the applicant challenged many parts of Dr. Lee’s initial assessment. Importantly, according to Dr. Lee’s notes the applicant was not fully independent before the accident and that he “was not doing any indoor housework and had hired a landscaper and purchased a snowblower prior to the motor vehicle accident in question”.

30The findings of Intrepid Investigations, who did surveillance of the applicant, shows a person who is very social and very active. Images from social media show the applicant taking what looks like a few vacations after the accident. The investigation showed the applicant being very active on those vacations and it appears that the applicant got married shortly after the accident.

31I prefer the evidence of the respondent in relation to the treatment plan in question. The applicant has not been able to prove on a balance of probabilities that the pain he suffers is from the accident in question. The applicant has a pre-existing history of chronic pain that makes it difficult to determine that this treatment plan is reasonable and necessary as a result of the accident. The pre- and post-accident evidence paints a different picture of the applicant than the one set out in Dr. Wilderman’s report. The applicant is described in the record before me as a poor historian twice, and is shown via surveillance as having an active post-accident life. This evidence casts doubt as to the causation of the applicant’s injuries and whether the disputed treatment plan is reasonable or necessary. I find that it is not.

Is the applicant entitled to $191.66 ($2,198.80 less $2,007.14 approved) for psychological services, proposed by Newmarket Wellness in a treatment plan dated January 25, 2019, denied on April 20, 2020?

32I find that the applicant is not entitled to $191.66 for psychological services as proposed by Newmarket Wellness.

33I find that this treatment plan not reasonable and necessary as a result of the accident for reasons similar to those set out above, with one exception. The applicant had the plan partially approved and was advised that the plan amount approved was within the acceptable fee structure under the SABS. The applicant was told that if they exceeded the amount approved then they would be responsible for the difference. I find that the insurer is under no obligation to pay the remainder of the plan.

Interest

34There is no interest awarded.

Award

35The applicant is not entitled to an award.

Costs

35I do not find that the respondent is entitled to costs because I do not find that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith.

36The onus is on the respondent to prove that, under section 19.1 of the Rules, the applicant acted “unreasonably, frivolously, vexatiously, or in bad faith”.

37The respondent did not provide the Tribunal with any submissions or arguments related to the claim for costs.

38I find that there is no compelling evidence to prove that the applicant behaved unreasonably, frivolously, vexatiously, or in bad faith. The respondent is not entitled to costs of $1,000.00 per day pursuant to section 19.6 of the Rules.

ORDER

39I order the following:

i. The applicant is not entitled to $25,869.22 for chiropractic, psychological, acupuncture, and massage therapy services.

ii. The applicant is not entitled to $191.66 for psychological services.

iii. The applicant is not entitled to an award.

iv. The applicant is not entitled to interest.

v. The respondent is not entitled to costs.

vi. The application is dismissed.

Released: July 11, 2024

__________________________

Gareth Neilson

Adjudicator