Citation: Mustafa v. Aviva General Insurance Company, 2025 ONLAT 24-001917/AABS

Licence Appeal Tribunal File Number: 24-001917/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:

Omar Mustafa

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Delaney McCartan, Counsel

For the Respondent:

Joanne R. Witt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Omar Mustafa, the applicant, was involved in an automobile accident on January 20, 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 General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant notes in his submissions that the accident occurred on January 19, 2020. According to the motor vehicle accident report, the correct date of the accident is January 20, 2019. Therefore, I confirm that the accident occurred on January 20, 2019.

PRELIMINARY ISSUES

3The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for substantive issues 1 and 3 because the applicant failed to attend insurer’s examinations under s. 44 of the Schedule.

SUBSTANTIVE ISSUES

4The issues in dispute are:

i. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $2,080.42 per month from September 14, 2022 to ongoing?

ii. Is the applicant entitled to $6,033.50 for occupational therapy treatment proposed by Innovative Occupational Therapy Services, in a treatment plan dated August 12, 2022?

iii. Is the applicant entitled to $1,995.51 for vestibular physiotherapy treatment proposed by Iscope Concussion and Pain Centres, in a treatment plan dated July 12, 2023?

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?

5The Case Conference Report and Order (“CCRO”), dated July 10, 2024, lists issue 2 as, “Is the applicant entitled to $6,033.50 for Occupational Therapy treatment proposed by Innovative Occupational Therapy Services in a treatment plan dated December 23, 2022?” Upon review of the parties’ submissions, the actual date of the treatment plan is August 12, 2022. Therefore, I have amended the issues in dispute to reflect this date.

RESULT

6The applicant is barred from proceeding to a hearing on the issues of entitlement to ACBs and the treatment plan for vestibular physiotherapy treatment dated July 12, 2023.

7The applicant is not entitled to the treatment plan for occupational therapy dated August 12, 2022.

8The applicant is not entitled to interest.

9The respondent is not required to pay a s. 10 award.

PROCEDURAL ISSUES

Non-compliance with production order

10The respondent submits that the applicant failed to produce any of the agreed upon productions or the particulars of the s. 10 award claim, prior to serving his written submissions.

11The parties participated in a Case Conference, and a CCRO was prepared dated July 10, 2024. At paragraph 12(i) of the CCRO, the applicant agreed to produce 14 productions to the respondent, by no later than 60 calendar days following the Case Conference, or by September 2, 2024. Additional productions that the parties intended to rely upon had to be produced at 75 days (by September 17, 2024) and 90 days (by October 2, 2024).

12The CCRO also required the applicant to produce to the respondent the particulars of the s. 10 award claim within 30 days after receipt of the adjuster’s log notes. The log notes were produced to the applicant on August 27, 2024. The applicant did not produce the particulars of the s. 10 award claim prior to serving his written submissions for the subject hearing.

13The respondent submits that the failure of the applicant to comply with the CCRO and the Licence Appeal Tribunal Rules (“LAT Rules”), is prejudicial to the respondent and is contrary to the principle of procedural fairness, as the respondent is entitled to know the case being made against them. The respondent submits that the applicant should not be permitted to rely on any of the documentation that was listed in the CCRO and/or which was not produced in accordance with the CCRO and the LAT Rules due to his failure to comply with same. The respondent further submits that an adverse inference should be drawn by the Tribunal due to the failure of the applicant to produce productions in a timely manner, or at any point prior to serving his submissions.

14The respondent further submits that the applicant failed to provide the particulars of the s. 10 award claim, as ordered in the CCRO. The respondent argues that any such claim should be dismissed by the Tribunal due to the prejudice caused to the respondent by the applicant.

15The respondent also submits that the applicant only produced a typed-written copy of the Clinical Notes and Records (“CNRs”) of the applicant’s family physician, in his written submissions. It submits that this is clearly prejudicial and these records should not be considered by the Tribunal.

16The applicant submits that while he did not exchange any productions subject to the CCRO, those that are relied upon in his written submissions were provided by the respondent in their complete Accident Benefits file (“AB File”) that was sent after the CCRO. The applicant submits that all of the records were in the respondent’s possession since they were originally produced. The applicant argues that he has not impeded the respondent’s ability to know the case to be met and to adequately respond to the issues in dispute.

17The applicant further submits that included in the complete AB file was the applicant’s CNRs of his family physician, Dr. James Chiang from January 1, 2018 to June 2, 2022. The applicant states that most of Dr. Chiang’s CNRs are ineligible based on his handwritten notes. He argues that the typed version of Dr. Chiang’s CNRs should be permitted as evidence to ensure that all parties, including the respondent, can make fulsome submissions based on accurate and legible records.

18I find that the applicant failed to comply with the production order set out in the CCRO. I find that the applicant has not provided an explanation for his non-compliance, except to state that he is not relying upon any of the requested documentation in his submissions. I find that the applicant cannot agree to provide productions at the case conference and then unilaterally decide he is not going to comply. As the applicant is submitting that he is not relying on any productions requested, there are no documents to exclude in the hearing. I find that the records ordered to be produced are relevant to the issues in dispute and therefore it is appropriate for me to make an adverse inference from the applicant’s failure to produce the records.

19With respect to the applicant’s s. 10 award claim, I find that the applicant failed to provide the particulars of the s. 10 award in compliance with the CCRO. In the Divisional Court decision Waldock v. State Farm Mutual Insurance Company, 2019 ONSC 6105 (“Waldock”), at the initial hearing a special award was granted by the arbitrator even though an award had not been included as an issue in dispute in any of the pre-hearing documents. The Court found that the arbitrator had inherent discretion to award a special award and that a special award is “always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payment of benefits”. The Court also found that procedural fairness was not denied, since the respondent had opportunities to make submissions on the issue.

20Applying the reasoning in Waldock, I find that despite the late disclosure of the award particulars and non-compliance with the CCRO, that it is not a breach of procedural fairness to consider the applicant’s claim for a s. 10 award. I find that the respondent had, and exercised, its opportunity to provide responding written submissions on the issue of a s. 10 award.

21With respect to the typed-written CNRs of the family physician, these records will be considered in this hearing. While the applicant should have requested a typed version of these records upon realizing that they were illegible, the respondent has not provided any evidence to support that it requested a typed version in advance of the hearing. Therefore, I see no prejudice to the respondent in relying upon the typed version in this hearing.

PRELIMINARY ISSUE

Failure to comply with s. 44 of the Schedule

22The applicant is barred from proceeding to a hearing on his entitlement to attendant care benefits (“ACBs”) and the treatment plan for vestibular physiotherapy, dated July 12, 2023.

The Law

23Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

24Section 44(9)2iii of the Schedule states that, “the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.”

25The requirements for a Notice of Examination (“NOE”) are set out in s. 44(5) of the Schedule:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

a. the medical and any other reason for the examination;

b. whether the attendance of the insured person is required at the examination;

c. the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

d. if the attendance of the insured person is required at the examination, 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.

26Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied with its request for attendance. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an Insurer’s Examination (“IE”). The Tribunal may, under section 55(2), permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.

Parties Positions

27The respondent submits that given the applicant’s failure to attend at all properly scheduled s. 44 assessments, the applicant is statute-barred from proceeding with his application for entitlement to ACBs from September 14, 2022 and ongoing, and the treatment plan for vestibular physiotherapy, dated July 12, 2023, pursuant to s. 55(1) of the Schedule.

28The respondent submits that on December 23, 2022, the applicant applied for ACBs. In response, on January 11, 2023, the respondent advised the applicant by way of an Explanation of Benefits (“EOB”), that s. 44 assessments were required to assist in determining entitlement. On January 18, 2023, a NOE was sent to the applicant and his representative, advising of the scheduled assessments with Dr. Howard Platnick, general practitioner, on February 16, 2023, and Rodney Pritchett, occupational therapist, on February 21, 2023. A revised NOE was sent on January 20, 2023. The respondent submits that the applicant did not attend either of the scheduled s. 44 assessments.

29The respondent submits that on July 27, 2023, the respondent agreed to reschedule the s. 44 assessments, and a new NOE was sent to the applicant and his representative on August 4, 2023, advising of the scheduled assessments with Dr. Davar Nikneshan, neurologist, on August 31, 2023; Dr. Pravesh Jugnundan, general practitioner on September 7, 2023; and Robert Campos, occupational therapist, on September 27, 2023.

30The applicant submitted a treatment plan for vestibular physiotherapy on July 12, 2023. On July 27, 2023, the respondent advised the applicant by way of an EOB that a s. 44 assessment was required to assist in determining entitlement. On August 4, 2023, the respondent sent a NOE to the applicant and his representative advising of the scheduled assessment with Dr. Nikesan, neurologist, on August 31, 2023.

31The respondent submits that the applicant has failed to attend the scheduled s. 44 assessments in non-compliance with s. 44(9)2(iii) of the Schedule. In addition, the applicant has not provided a reasonable explanation for his failure to comply with s. 44. The respondent disputes the applicant’s submission that he showed a willingness to attend at s. 44 assessments, by attending the s. 44 assessments in October and November 2019 and February 2020. The respondent submits that there is no evidence of his apparent willingness thereafter, especially as no explanation for the failure to attend has ever been provided to the respondent.

32The applicant submits that he should not be barred from proceeding to this hearing based on his non-attendance at the scheduled s. 44 assessments. First, the applicant submits that he has demonstrated a willingness to attend s. 44 assessments requested by the respondent based on his attendance at two assessments that assessed whether his accident-related injuries were subject to the MIG. Second, the applicant submits that the respondent did not provide a clear and unequivocal denial and reason for attending s. 44 assessments as it pertains to the applicant’s entitlement to an ACB. Third, the applicant submits that if it is reasonable and necessary for the respondent to send him to be evaluated by its own s. 44 assessor to address his current ACB needs, then the original Form 1 is equally reasonable and necessary. Fourth, the applicant submits that the respondent failed to ensure that the occupational therapy s. 44 assessment could proceed at his home as the address given to the assessor was a business address. Fifth, the applicant submits that the respondent did not provide an explanation as to why multiple s. 44 assessments were required for his ACB. He argues that the respondent has not met the reasonable and necessary test for why a s. 44 was scheduled with a general practitioner and a neurologist, when the original Form 1 was completed by an occupational therapist. Sixth, the applicant submits that the respondent has not proven that he did not attend the rescheduled occupational therapy s. 44 assessment with Mr. Campos. Finally, the applicant submits that the respondent did not communicate or confirm with the applicant that he failed to attend any of his rescheduled s. 44 assessments regarding his ACB. In addition, the respondent did not communicate to the applicant whether his ACB was suspended or denied based on his non-attendance at the rescheduled s.44 assessments.

The respondent’s notices of examination complied with s. 44(5) of the Schedule

33I find that the Schedule is clear that the applicant has a duty to participate in each s. 44 that is reasonably necessary and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. I find that the applicant did not attend any of the scheduled s. 44 assessments arranged by the respondent. I further find that the applicant has not provided a reasonable explanation for his non-attendance.

34I find that the EOB, dated January 11, 2023, was valid and compliant with s, 44(5) of the Schedule, as it provides a clear and sufficient reason to allow the applicant to make an informed decision whether to attend the s. 44 assessments. I find that the EOB specifically referenced the Form 1 dated September 14, 2022, and the occupational therapy in-home functional assessment report dated September 29, 2022. It also explained the reason why it required the s. 44 assessments, based on a comparison of these documents to other medical documentation on file including, but not limited to, the general practitioner IE report dated March 2, 2020 and the neurological IE report dated November 14, 2019. The respondent advised that following its review, the amount and type of care recommended in the Form 1 does not appear consistent with the impairments identified in the medical reports and documentation on file. A second opinion was required to determine if the proposed benefit is reasonable and necessary and advises that it will provide the details of the scheduled IE assessments. I therefore find that the denial provided sufficient medical and other reasons for the denial of the applicant’s ACBs and the reasons for its request for s. 44 assessments. I further find that the letter specifically states that the amount payable for ACBs is “$0.00/month” and it is clear that his attendance at the s. 44 assessments was required in order to assess his entitlement to ACBs.

35I find that the revised NOE dated January 20, 2023, also complies with s. 44(5) of the Schedule, as the respondent again sets out the reasons for the s. 44 assessments and provides the name, profession/designation, and specialty of the assessors, as well as the date, time, and location of the examinations.

36I find that by letter dated July 27, 2023, the respondent advised the applicant that he had failed to attend the IEs scheduled for February 16 and 21, 2023. It agreed to reschedule the assessments. I find that the NOE provided on August 4, 2023, was valid and compliant with the Schedule. It sets out the medical and other reasons for the denial and provides the names, profession/designations, and specialty of the assessors, as well as the date, time, and location of the examinations. The NOE specifically advises the applicant that it is unable to determine whether the recommendations for attendant care are reasonable and necessary for your injuries and states “If you don’t attend your examination your benefits will be suspended.”

37I find that by letter dated September 27, 2023, the IE assessment company, Viewpoint, advised the respondent that the applicant failed to attend the general practitioner IE with Dr. Jugnundan on September 7, 2023, and the neurology assessment with Dr. Nikneshan on August 31, 2023. I find that there is no correspondence from Viewpoint about the applicant’s failure to attend the assessment with Mr. Campos. However, based on the submissions and evidence provided by the parties, there is no evidence that the applicant attended for this assessment.

38I do not accept the applicant’s submission that he has demonstrated a willingness to attend the s. 44 assessments because he previously attended s. 44 assessments to assess whether his accident-related injuries were subject to the MIG. The s. 44 assessments at issue were to address his entitlement to ACBs and a treatment plan which were separate issues in dispute. I find that the applicant has not pointed or directed me to any evidence of his attendance at the s. 44 assessments at issue or provided a reasonable explanation for non-attendance.

39With respect to the applicant’s submission that the Occupational Therapy assessment was not scheduled to take place at his home address, as it was a business address, I find that all of the notice letters are addressed to the applicant at 120 Oakdale Road where the assessment was scheduled to take place. While the applicant submits that this is a business address and not his home address, I find that there are no submissions made by the applicant as to why the respondent has this address on their correspondence to the applicant. However, even if I do accept the applicant’s submission that the respondent failed to comply with s. 44(9)(2) by failing to schedule the s. 44 occupational therapy assessment at his home address, the fact remains that he is still in non-compliance with s. 44 due to his failure to attend the s. 44 general practitioner and neurological assessments.

40The applicant further submits that the respondent has not proven that a neurological and a general practitioner’s assessment were reasonably necessary to assess his entitlement to ACBs when the Form 1 was completed by an occupational therapist. I find based on the medical documentation provided by the applicant, that it is clear that he was claiming to suffer ongoing headaches, dizziness and physical pain as a result of the accident. Two previous IE reports were completed by a general practitioner and a neurologist, in respect to the applicant’s removal from the MIG. As new documentation was submitted, the respondent therefore had an obligation to adjust the file and consider any information provided to it and were entitled to have him reassessed by both specialities in addition to an occupational therapist. I further find that the respondent scheduled a neurological assessment in respect to the treatment plan for vestibular therapy which was reasonably necessary based on the type of treatment requested. I find that at no point after receiving the NOEs did the applicant raise an issue with respect to the type of assessments scheduled until he submitted his written submissions. Instead, he simply did not reply and did not attend the scheduled assessments.

41Finally, the applicant’s argument that the respondent did not send any subsequent correspondence to the applicant about his non-attendance at the IEs is not accepted as a reasonable explanation for his non-attendance. While best practice would be for the respondent to follow up after the applicant’s non-attendance, there is nothing in the Schedule that provides that an insurer must send a letter to the applicant following his non-attendance at a s. 44 assessment. The respondent’s NOE clearly states that if he does not attend the examinations his benefit will be suspended. Therefore, I find that the respondent’s lack of correspondence following his non-compliance is not a reasonable explanation for the applicant’s non-attendance.

42For the reasons outlined above, I find that the applicant is statute barred from proceeding with his claim for ACBs and the treatment plan for vestibular therapy, dated July 12, 2023, under s. 55(1)(2) of the Schedule.

Entitlement to the treatment plan for occupational therapy dated August 12, 2023

43The applicant is not entitled to the treatment plan for occupational therapy dated August 12, 2023.

44To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving 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 the overall costs of achieving them are reasonable.

45Section 38(8) of the Schedule requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11) of the Schedule, if the insurer fails to comply with its obligations under s. 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

46The applicant claims entitlement to $6,033.50 for occupational therapy treatment proposed by Innovative Occupational Therapy Services, in a treatment plan dated August 12, 2022.

47The applicant submits that by letter dated September 1, 2022, the respondent denied the treatment plan. On September 7, 2022, the respondent sent the applicant a letter indicating that the treatment was not payable. On January 11, 2023, the respondent removed the applicant from the MIG and the August 12, 2022 treatment plan was approved. The applicant in his submissions requests that the Tribunal confirm that the treatment plan was approved on January 11, 2023.

48The respondent submits that on August 18, 2022, the applicant submitted the treatment plan in dispute. By EOB dated September 7, 2022, it advised the applicant that the treatment plan was denied based on a review of documentary evidence that had been produced in this matter, which included evidence that there had been gaps in treatment without clinical explanation. A request for records was made, along with a request that the applicant attend at s. 44 assessments. The respondent further stated that “As we are late in providing the notice, we agree to pay for all goods, services, assessments and examinations described in the treatment and assessment plans that related to the period starting on the 11th business day after the insurer received the application from September 2, 2022 to September 7, 2022.”

49The respondent submits that there was no response from the applicant to the request for records and no invoices were submitted for any amount incurred during the covered period due to the late notice. The respondent submits that it was unable to determine if the proposed treatment plan was reasonable and necessary due to the failure of the applicant to comply with the request for records and the failure to produce the requested records in accordance with the CCRO. The respondent further submits that without evidence that the proposed treatment plan was reasonable and necessary, the respondent was unable to reach a determination with regard to entitlement.

50I find that the respondent was in non-compliance with s. 38(8) of the Schedule, when it failed to respond to the treatment plan within 10 days. I find that in its letter dated September 7, 2022, it acknowledged that it was late and advised the applicant that it would pay for the incurred goods and services during the period from September 2, 2022 to September 7, 2022, pursuant to s. 38(11). I find that the applicant did not provide an invoice to the respondent for any goods and services incurred during this period.

51I find that the respondent’s letter dated September 7, 2022, was a proper denial of the treatment plan in dispute. I find that pursuant to s. 38(11) of the Schedule, the respondent was prohibited from relying on the MIG as the sole reason for the denial. I find that the respondent did not rely on the MIG to deny entitlement to the treatment plan. Rather, the respondent advised that the treatment plan was denied as the applicant’s health care provider noted physical, cognitive and psycho emotional symptoms impacting his activities of daily living. The respondent noted that there appears to be gaps in treatment without documented clinical explanation and therefore it requested CNRs of his family physician and all specialists seen from June 2018 to present and a copy of OHIP records for the period one-year pre-accident to present. I find that the September 7, 2022 EOB provided medical and all reasons for the denial and that the denial was clear enough for an unsophisticated person to understand it was a denial.

52I find upon review of the respondent’s letter dated January 11, 2023, the respondent advised the applicant that due to providing its EOB response to the treatment plan submitted on August 16, 2022 after the required 10 business days, it had removed the applicant from the MIG. I find that while the letter removes the applicant from the MIG, it does not state that the treatment plan dated August 12, 2022 is approved.

53I find that the applicant has not provided any submissions with respect to whether the treatment plan in dispute is reasonable and necessary. I therefore find that he has not met his onus of proving entitlement.

54For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan dated August 12, 2022.

Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

56The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Provide the basis for the award. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

57For the reasons outlined above, I find that:

i. The applicant is barred from proceeding to a hearing on the issues of entitlement to ACBs and the treatment plan for vestibular physiotherapy treatment dated July 12, 2023;

ii. The applicant is not entitled to the treatment plan for occupational therapy dated August 12, 2022;

iii. The applicant is not entitled to interest;

iv. The respondent is not required to pay a s. 10 award; and

v. The application is dismissed.