Citation: Cunha v. Aviva Insurance Company of Canada, 2025 ONLAT 23-012708/AABS

Licence Appeal Tribunal File Number: 23-012708/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:

Jessica Cunha

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jessica Cunha, the applicant, was involved in an automobile accident on May 7, 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 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.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $549.22 ($5,117.88 less $4,568.66 approved) for psychotherapy, proposed by Imperial Medical Assessments in a treatment plan/OCF-18 (“treatment plan”) submitted May 9, 2022?
2. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Imperial Medical Assessments in a treatment plan submitted November 18, 2022?
3. Is the applicant entitled to $2,486.00 for a hyperbaric oxygen assessment, proposed by Imperial Medical Assessments in a treatment plan submitted February 21, 2023?
4. Is the applicant entitled to $2,486.00 for an orthopaedic assessment, proposed by Imperial Medical Assessments in a treatment plan submitted February 3, 2023?
5. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by Imperial Medical Assessments in a treatment plan submitted March 21, 2023?
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?

3The applicant withdrew the issue set out as issue number #1 in the case conference report and order (“CCRO”) which was $190.97 for massage therapy in a treatment plan submitted February 23, 2022

RESULT

4I find that:

1. The remaining amount of $549.22 for psychotherapy in the treatment plan dated May 9, 2022 is payable in accordance with s. 38(11) of the Schedule.
2. The treatment plan for a chronic pain assessment dated November 18, 2022 is payable in accordance with s. 38(11).
3. The treatment plan for a hypobaric assessment dated February 3, 2023 is payable in accordance with s. 38(11)
4. The applicant has not established that the orthopaedic treatment plan is payable pursuant to s.38(11),
5. The treatment plan for a social work assessment dated March 21, 2023 is payable in accordance with s. 38(11).
6. The applicant is entitled to interest on any outstanding payments in accordance with s.51.
7. The applicant is not entitled to an award.

PROCEDURAL ISSUE

Respondent’s submissions

5The applicant submits that the respondent exceeded the page limit for its submissions set out in the Case Conference Report and Order (“CCRO”), because the submissions were in an 11 point rather than 12 point font, used 1 ½ rather than 2 line spacing, and ran to 12 pages. The applicant requests that the respondent’s submissions be struck from the record in their entirety, or in the alternative, that the pages in excess of the page limit be struck.

6While noncompliance with Tribunal Orders is a serious matter, I decline to strike all or a portion of the respondent’s submissions because I find that the applicant has not established that she would be prejudiced if I allowed the submissions. In her reply submissions, the applicant argues that she will suffer “irreversible prejudice” should the respondent’s submissions be allowed, but does not explain how she would be prejudiced, and the applicant had an opportunity to, and did reply to the respondent’s submissions. Additionally, I considered that the prejudice to the respondent of excluding all or part of their submissions is significant, and that the applicant’s submissions are also not compliant with the CCRO.

7For these reasons, I will consider the respondent’s submissions in full.

ANALYSIS

8The applicant makes no submissions as to whether the treatment plans in dispute are reasonable and necessary and instead, makes the procedural argument that they are payable in accordance with s. 38(11) of the Schedule, due to non-compliance with s.38(8). The respondent’s submissions do not address the applicant’s submissions with respect to s.38.

Section 38

9Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

10If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

Section 44(5)

11Section 44(5)(a) states that, if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination, whether the attendance of the insured person is required, the name of the person conducting the examination, any regulated health profession to which they belong including their titles, and designations indicating their specialization, if any. The notice must also include the day, time, and location of the examination and if the examination will require more than one day, the same information for the subsequent days is also required.

12The applicant relies on the Tribunal decision of Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (“Taksali”), which held that a non-compliant notice of an insurer’s examination (“IE”) caused the resulting IE report to be void ab initio. The applicant takes the position that a denial notice which relies on such an IE report, is in itself invalid as a result.

13Taksali is a Tribunal decision and is not binding on me. I disagree with the conclusion in Taksali that a non-compliant notice of an IE renders the IE report void, because it failed to consider that the remedy for an insufficient IE notice is that the applicant is not obligated to attend the IE.

14In the present case, the applicant attended and participated in the IEs without any protest, and as such, the applicant’s arguments on the admissibility of the IE reports, and the respondent’s reliance on them in denying treatment plans are moot.

Is the treatment plan for the remaining $549.22 ($5,117.88 less $4,568.66 approved) for psychotherapy, submitted May 9, 2022 payable in accordance with s.38(11)?

15I find that the remaining amount of $549.22 for physiotherapy in the treatment plan submitted May 9, 2022 is payable in accordance with s.38(11).

16The denial letter indicates that the respondent will not pay for “client related supervision services,” and asks the applicant to provide additional information to prove that they are reasonable and necessary, without identifying which line items the respondent classified as client related supervision services. Therefore, I find that the denial letter does not contain sufficient detail for an unsophisticated person to make an informed decision whether to dispute the denial.

17As I have found that the March 18, 2022 denial letter does not comply with s. 38(8), s. 38(11) is engaged and the remaining $549.22 in the treatment plan is payable, once incurred and properly invoiced.

Is $2,486.00 for a chronic pain assessment in a treatment plan dated November 18, 2022 payable in accordance with s.38(11)?

18I find that the treatment plan for a chronic pain assessment submitted on November 18, 2022 is payable in accordance with s.38(11).

19The applicant submits that the respondent’s December 15, 2022 denial letter for the November 18, 2022 treatment plan is not compliant with s. 38(8) because it does not contain adequate medical or other reasons for the denial. The respondent argues that the notice is compliant.

20I agree with the applicant. The denial letter sets out the medical reasons as:

Based on medicals on file, assessments completed, and the date of loss being over 3.5 years; there is no compelling medical evidence to indicate that a chronic pian assessment is reasonable or necessary for the injuries sustained in the motor vehicle accident.

21I find the medical reasons are insufficient to comply with s.38(8) because they do not identify the applicant’s injuries, and it is unclear whether “no compelling evidence” indicates that the respondent requires further evidence, because no additional records were requested, or that the respondent has sufficient evidence to determine that the applicant’s unidentified injuries do not warrant a chronic pain assessment. As, such I find that the December 15, 2022 denial letter is not sufficiently clear or detailed for an unsophisticated person to make an informed decision whether to dispute the denial.

22As I have found that the denial letter is not compliant with s.38(8), s. 38(11) is engaged.

23The respondent provided the applicant with a Notice of Examination(“NOE”) on December 15, 2022 which included identical language to the denial notice. As such, I find that the NOE is not compliant with s. 38(8) or s.44(5) and did not cure the deficient denial.

24The respondent issued a final denial notice on January 23, 2023, basing its denial on the s.44 examination (“IE”) report of Dr. Eric Silver, family physician, which was attached to the denial letter. However, the sole medical and other reason given was that Dr. Silver had opined that the treatment plan is “not reasonable and necessary from the injuries sustained in the motor vehicle accident.” Because the respondent did not identify the applicant’s injuries, or provide the medical reasons underlying Dr. Silver’s conclusion that the treatment plan was not reasonable and necessary, I find the January 23, 2023 denial notice is not sufficiently detailed to meet the specificity required in s.38(8), and did not cure the deficient December 15, 2022 notice.

25Accordingly, I find that the treatment plan is payable in accordance with s.38(11), once incurred and properly invoiced.

Is $2,486.00 for a hyperbaric oxygen assessment in a treatment plan dated February 3, 2023 payable in accordance with s.38(11)?

26I find that the February 3, 2023 treatment plan is payable in accordance with s. 38(11).

27The respondent issued a denial letter which included a NOE on March 1, 2023 for the treatment plan dated February 3, 2023. The applicant argues that the denial letter is not compliant with s.38(8) because it was issued more than 10 business days after the treatment plan was submitted. The respondent argues that the treatment plan was submitted on February 21, 2023, which is the date set out in the CCRO. However, the evidence reveals that the treatment plan has an HCAI # with a date of February 3, 2023, and both the March 1, 2023, and April 3, 2023 denial notices from the respondent indicate that the treatment plan was received on February 3, 2023. Therefore, I find on a balance of probabilities that the treatment plan was received by the insurer on February 3, 2023, and the denial notice was issued more than ten business days later on March 1, 2023.

28As a result, I find that the March 1, 2023 denial letter is not compliant with s.38(8) and section 38(11) is engaged.

29The respondent sent a final denial letter on April 3, 2023, enclosing a copy of the paper review IE of Dr. Silver. The denial letter relies on Dr. Silver’s conclusion that the treatment plan is not reasonable and necessary, however, the letter does not identify the applicant’s injuries, or provide details of Dr, Silver’s diagnosis or medical findings. As a result, I find that the April 3, 2023 denial letter is not compliant with s.38(8), and does not cure the deficient March 1, 2023 denial letter.

30Accordingly, the treatment plan for a hyperbaric assessment dated February 3, 2023 is payable in accordance with s. 38(11), once incurred and properly invoiced.

Is $2,486.00 for an orthopaedic assessment in a treatment plan submitted February 3, 2023 payable in accordance with s.38(11)?

31I find that the treatment plan is not payable pursuant to s. 38(11).

32The respondent issued a denial letter for the February 3, 2023 treatment plan on February 6, 2023. I find that the denial letter is compliant with s. 38(8) because the letter is a clear and unequivocal denial, identifies the treatment plan at issue, identifies the applicant’s injuries and explains that Dr. Silver opined in his January 23, 2023, IE report that he found no ongoing accident -related musculoskeletal impairment. The letter advises the applicant that there will be a s.44 paper review of Dr, Silver’s report, and that she is not required to attend the examination. The NOE advises the applicant of her rights to dispute the denial and the timelines in which to do so. For these reasons, I find that the denial letter is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether or not to dispute the denial

33As a result, the treatment plan for an orthopaedic assessment is not payable in accordance with s.38(11).

Is $2,200.00 for a social work assessment in a treatment plan submitted March 21, 2023 payable in accordance with s.38(11)?

34I find that the treatment plan dated March 17, 2023 and submitted on March 21, 2023 is payable in accordance with s. 38(11).

35The respondent denied the treatment plan on April 4, 2023. The denial letter contains identical language to the denial letter sent on December 15, 2022, which I found to be non-compliant because the medical reasons were insufficiently clear and detailed, as noted at paragraph 23 above. I find the April 4, 2023 denial letter to be non-compliant for the same reasons.

36As I found the April 4, 2023 denial letter does not comply with s. 38(8), s. 38(11) is engaged.

37The respondent sent a subsequent denial letter, on June 27, 2023, denying the treatment plan and enclosing the IE report of Dr. Kelly McCutcheon, psychologist. However, the sole medical reason provided for the denial letter is Dr. McCutcheon’s opinion that the treatment plan is not reasonable and necessary, and the denial letter does not identify the applicant’s injuries or the medical basis for the determination. As such I find the June 27, 2023 denial letter is not sufficiently detailed to meet the requirements of s. 38(8).

38As I have found that the June 27, 2023 denial letter does not comply with s. 38(8), it does not cure the deficient April 4 denial letter. Therefore, the treatment plan for a social work assessment, submitted on March 21, 2023, is payable in accordance with s.38(11), once incurred and properly invoiced.

Interest

39The applicant is entitled to interest on any outstanding payments in accordance with s.51

Award

40The 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.

41While I agree with the applicant that the respondent made multiple errors with respect to its denials of the treatment plans, the applicant has not directed me to any evidence that the respondent has behaved in a manner that rises to the level of being excessive, imprudent, inflexible, or unreasonable.

42As such, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an award.

ORDER

43I find that:

1. The remaining amount of $549.22 for psychotherapy in the treatment plan dated May 9, 2022 is payable in accordance with s.38(11).
2. The treatment plan for a chronic pain assessment dated November 18, 2022 is payable in accordance with s. 38(11).
3. The treatment plan for a hypobaric assessment dated February 3, 2023 is payable in accordance with s. 38(11).
4. The denial of the treatment plan for an orthopaedic assessment dated February 3, 2023 is compliant with s.38(8), and therefore it is not payable in accordance with s.38(11).
5. The treatment plan for a social work assessment dated March 21, 2023 is payable in accordance with s. 38(11).
6. The applicant is entitled to interest on any outstanding payments in accordance with s.51.
7. The applicant is not entitled to an award.