Bekele v. Aviva Insurance Company, 2024 CanLII 86448

Citation: Bekele v. Aviva Insurance Company, 2024 ONLAT 22-006934/AABS

Licence Appeal Tribunal File Number: 22-006934/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:

Tegegne Bekele

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Justin Mariani, Paralegal

For the Respondent: Mark Vella, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Tegegne Bekele, the applicant, was involved in an automobile accident on June 3, 2017, 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, and applied to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent brought a motion for an order barring the applicant from proceeding to a hearing for attendant care, assistive devices, and chiropractic services as listed in issues 2, 5, 6, 7 and 9 of the Case Conference Report and Order (“CCRO”) dated March 14, 2023 because the applicant failed to dispute the respondent’s denial of these benefits within the 2-year limitation period.

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

1. Is the applicant entitled to an income replacement benefit in the amount of $229.45 per week from September 11, 2017 to October 28, 2018?
2. Is the applicant entitled to $5,483.87 for occupational therapy services (assistive devices), proposed by Midtown Assessment Services (“MAS”) in a plan submitted on August 29, 2019, and denied on August 29, 2019?
3. Is the applicant entitled to $6,391.81 for chiropractic services, proposed by MAS in a plan submitted on August 29, 2019, and denied on August 29, 2019?
4. Is the applicant entitled to $2,314.77 ($4,684.59 less $2,369.82 approved) for chiropractic services, proposed by iWellness.ca Rehab & Wellness Clinic in a plan submitted on September 25, 2019, and denied on November 05, 2019?
5. Is the applicant entitled to $2,398.76 for chiropractic services, proposed by iWellness.ca Rehab & Wellness Clinic in a plan submitted on February 24, 2020, and denied on February 25, 2020? The parties indicate in their submissions that the plan is for chiropractic services by iWellness.ca Rehab & Wellness and not as listed in the Order.
6. Is the respondent liable to pay an award under s. 10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

4The applicant advised in his submissions that issues 2, 3, 4 and 8 as listed in the CCRO were withdrawn and that the income replacement benefits (“IRB”) were being claimed for the period listed above and not at the rate of $400.00 per week from June 11, 2017 to date and ongoing as listed in the Order.

RESULT

5On the preliminary issue, I find that the applicant is barred by virtue of s. 56 of the Schedule from disputing the occupational therapy treatment plan in the amount of $5,483.87; the chiropractic services treatment plan in the amount of $6,391.81 and the chiropractic services treatment plan in the amount of $2,314.77 ($4,684.59 less $2,369.82 approved) and the chiropractic services treatment plan in the amount of $2,398.78 for failure to dispute the denied plans within two year limitation period.

6I find that the applicant is not entitled to an income replacement benefit in the amount of $229.45 for the period from September 11, 2017 to October 28, 2018.

7The application is dismissed.

PROCEDURAL ISSUES

8The respondent served and filed a Notice of Motion together with a Factum containing the order sought, grounds and case law, requesting that the Tribunal add a preliminary issue to dismiss the applicant’s claims for benefits listed in issues 2, 5, 6, 7 and 9 listed in the CCRO without a hearing pursuant to s.56 of the Schedule.

9The applicant argues that s.56 is not engaged, as the respondent’s denials are non-compliant with the Schedule.

10The respondent submits that issues 2-9 of the CCRO were not added until March 9, 2023, less than 10 days before the case conference. The respondent does not give specific reasons for not adding the preliminary issue at the case conference. However, since the applicant did have the opportunity to respond to the motion and has made submissions on the preliminary issue, I will allow the motion to proceed.

Page Limits Exceeded

11The respondent submits that the applicant has failed to abide by the submission page limits set out in the CCRO. The CCRO indicates the applicant’s and respondent’s written submission will be limited to 15 pages in length.

12The respondent filed submissions of 9-pages in length in support of its motion in addition to submissions of 15 pages pursuant to the CCRO. The applicant responded to the respondent’s motion to add the preliminary issue in his submissions.

13In his reply, the applicant submits that the page limits are exclusive of evidence and case law and he included quotes from various case law and evidence which amounted to 17.5 pages of his 29-page submissions. Therefore, the applicant argues he didn’t exceed the 15-page limit set out in the CCRO, as the pages including quotes from various case law and evidence should be excluded.

14I disagree with the applicant that the submissions he made pertaining to case law and evidence are exclusive of the page limit. The CCRO was clear that the page limit for submissions was 15 pages, which includes submissions being made on the evidence and case law to support his position on entitlement. The actual pages of evidence and case law referenced in the submissions and appended as documents are excluded from the page limit.

15The CCRO specified that the hearing adjudicator may not consider submissions which exceed page limits. I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 15-page limits set out in the CCRO. However, in this case, I will admit non-compliant submissions, and assign them whatever weight I deem appropriate.

Changes to the Issues in Dispute

16In his submissions, the applicant withdrew issues 2, 3, 4 and 8 in the CCRO.

17In his submissions, the applicant changed the quantum and duration of the IRB to $229.45 per week from September 11, 2017 to October 28, 2018 and not $400.00 per week from June 11, 2017 to date and ongoing as stated in the CCRO.

18Since the applicant has withdrawn the issue of his entitlement to attendant care benefits in his submissions, (issue 2 in the CCRO), I will not consider this issue.

ANALYSIS

Preliminary Issues

19The respondent brought a motion to add a preliminary issue seeking to dismiss issues listed in 2, 5, 6, 7 and 9 of the CCRO pursuant to s. 56 of the Schedule.

20The preliminary issue to be decided is whether the applicant is barred under s.56 of the Schedule from proceeding to a hearing for occupational therapy services, assistive devices and psychological services listed in issues 2, 3, 4 and 5 because he failed to file an application with the Tribunal to dispute the denial of these benefits within the two-year limitation period.

21Section 56 of the Schedule bars the applicant from applying to the Tribunal more than two years after the benefit was denied.

22The respondent submits that the applicant added issues 2, 3, 4 and 5 to the application in his case conference summary dated March 9, 2023.

23The respondent further submits that the benefits in dispute in issues 2, 3 and 4 were further denied by November 7, 2019, following an Insurer’s Examination report of Dr. David Mula. The applicant filed a dispute with the Tribunal on June 20, 2022 and he did not attempt to add theses issues until the case conference on March 14, 2023. The respondent submits that issue 5 was denied on February 25, 2020, and the applicant did not file his dispute until over 3 years after the denial.

24The applicant submits that he should be able to proceed to the substantive hearing. He argues that s.56 is not engaged, as the respondent’s denials are non-compliant with the Schedule for failing to provide valid medical reasons. The applicant submits since the respondent did not properly deny the disputed treatment plans, listed in issues 2, 3, 4 and 5 in accordance with s. 38(8) of the Schedule, there is no denial, and the two-year limitation period has not commenced.

25Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

26The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

The respondent’s denial notices are compliant with the Schedule

OCF-18 submitted August 29, 2019 for occupational therapy services and chiropractic services

27I find that the Explanation of Benefits (“EOB”) dated August 29, 2019 is valid. Although, the applicant submits that no medical reason was provided and that the language is vague, I disagree. The respondent has identified the applicant’s medical condition. The EOB specifically references the fact that the respondent has not received compelling medical information to indicate that the applicant suffers from any physical impairments. The respondent has further specified the information it does not have but requires, namely an updated Disability Certificate and medical documentation from before and after the accident.

28Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render a notice invalid. In this case, the language was clear and straightforward and was sufficient to permit the applicant to make an informed decision as to whether to accept or refuse the denial. I find this was a clear and unequivocal denial.

OCF-18 submitted September 20, 2019 for chiropractic services

29I find that the EOB dated September 26, 2019, November 5, 2019 and November 7, 2019 were valid denials. Although, the applicant submits that the EOB dated November 5, 2019 only references a discussion with the treatment provider in partially approving the OCF-18, the respondent further stated they require the hospital records and are scheduling an IE. In addition, the EOB dated September 26, 2019 specifically references the applicant’s medical conditions of hypertonicity in the cervical, thoracic and lumbar regions with severe functional limitations. Further, in EOB dated November 7, 2019, the respondent provided the opinion of Dr. David Mula in finding a diagnosis of myofascial strain injuries of the applicant’s cervical and lumbosacral spine, bilateral shoulders, and tension headache. Dr. Mula also found the applicant has reached maximum medical improvement, without further need for treatment.

30I find that this was a clear and unequivocal denial. The respondent has identified the applicant’s medical conditions. The applicant was provided with information regarding his right to appeal the decision. In my view, the reasons were clear and sufficient to allow an unsophisticated person to make an informed decisions to either accept or dispute the decision at issue.

OCF-18 submitted February 24, 2020 for chiropractic services

31I find that the EOB dated February 25, 2020 was a valid denial. The respondent references the medical opinion of Dr. David Mula which identifies the applicant’s medical condition and the reasons for its denial of further physical treatment.

32Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render a notice invalid. In this case, the language was clear and straightforward and was sufficient to permit the applicant to make an informed decision as to whether to accept or refuse the denial. I find this was a clear and unequivocal denial.

The Claims for Occupational Therapy and Chiropractic Services are Statute-Barred Pursuant to s.56 of the Schedule

33The applicant has made no submissions regarding his failure to dispute the validity of the respondent’s denials within the statutory two-year limitation period. Since I have found the denials were sufficient, and the applicant failed to file his application within the two-year limitation under s.56 of the Schedule, I find that he is statute barred from applying to the Tribunal regarding the benefits listed in issues 2, 3, 4 and 5.

34I am not satisfied that the applicant had an intention to appeal the denial of the plans listed in issues 2, 3, 4 and 5, since he did not list these issues in dispute in his application filed June 20, 2022. These issues were not added until the applicant filed a case conference summary on March 9, 2023.

35I find the applicant’s claim for occupational therapy services and chiropractic services are statute-barred pursuant to s.56 of the Schedule, as the claims were not filed within the two-year limitation period, or by November 7, 2021 and February 25, 2022.

Is the applicant entitled to an income replacement benefit?

36The eligibility criteria for an IRB are laid out in s. 5 of the Schedule.

37To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them.

38The respondent submits that the applicant was disabled from working at the time of the accident. The respondent further submits that although the applicant was receiving Employment Insurance (“EI”) at the time of the accident, he is not entitled to an IRB based on an inability to return to his pre-accident employment as a result of the accident.

39Section 5(1) states that the insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

1. The insured person, i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or ii. was not employed at the time of the accident but, A. was employed at least 26 weeks during the 56 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident.

40The applicant submits that he was unemployed and collecting EI on the date of the accident. The applicant relies on his Disability Certificates (OCF-3’s) dated July 20, 2017 and June 3, 2019 completed by Dr. Raafat Gindi and an accountant report dated December 13, 2019 by ADS Forensics (“ADS”). The applicant makes no submissions regarding the duties of his pre-accident employment or whether he suffered a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident.

41The applicant submits that he was in receipt of benefits at the time of the accident and that the respondent should have calculated his IRB based on his EI benefits.

42The applicant failed to make submissions regarding the test for IRBs. This is fatal to the applicant’s case since they now can’t discharge their onus. The applicant’s submissions largely relate to the non-deductibility of denied collateral benefits and long-term disability (“LTD”) lump sum payments made for claims in litigation which I find unpersuasive. These submissions are not directly relevant to the point of whether the applicant is substantially prevented from engaging in the essential tasks of his pre-accident employment. However, out of fairness to the applicant, I will briefly address these submissions.

43The submissions of the parties address the quantum of the applicant’s IRB without specifically addressing the applicant’s entitlement to an IRB under s.5 of the Schedule. In summary, the applicant received a retroactive CPPD benefit payment for the period from July 1, 2017 to October 29, 2018, totaling $15,506.40 and continues to receive CPPD benefits at a rate of $974.55, gross per month, indexed for inflation. Since the applicant has received these amounts, they are deductible from his IRB entitlement. As the applicant has received CPPD benefits for the period from September 11, 2017 to October 28, 2018, the respondent may deduct the amounts received from his IRB entitlement. There is no difference in the amounts received retroactively from ongoing CPPD benefits received after Service Canada approved CPPD on October 29, 2018.

44I find that the applicant is claiming entitlement to an IRB within 104 weeks after the accident for the period from September 11, 2017 to October 28, 2018. The applicant makes no submissions to explain his pre-accident duties of employment and which tasks he was unable to perform as a result of the accident. Therefore, I find that the applicant has failed to demonstrate his entitlement to an IRB under s.5 of the Schedule.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating his entitlement to an IRB or that the treatment plans in dispute are not statute-barred, no benefits are owing and interest does not apply.

Award

46The applicant sought an award under s. 10 of Reg. 664. Under s. 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. The applicant seeks an award regarding psychological services in the amount of $3,312.51 in a treatment plan dated October 24, 2019, which was later approved. I find an award is not appropriate because the applicant withdrew the issue and is no longer in dispute.

ORDER

47For the reasons set out above, I find that:

i. The applicant is not entitled to an income replacement benefit in the amount of $229.45 per week from September 11, 2017 to October 28, 2018;

ii. The applicant is barred from proceeding with claims for occupational therapy treatment plan in the amount of $5,483.87; the chiropractic services treatment plan in the amount of $6,391.81 and the chiropractic services treatment plan in the amount of $2,314.77 ($4,684.59 less $2,369.82 approved) and the chiropractic services treatment plan in the amount of $2,398.78 pursuant to s.56 of the Schedule;

iii. Interest nor an award apply, and;

iv. The application is dismissed.