Arcuri v. Aviva General Insurance, 2025 CanLII 15986

Citation: Arcuri v. Aviva General Insurance, 2025 ONLAT 23-000236/AABS

Licence Appeal Tribunal File Number: 23-000236/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:

Giuseppina Arcuri

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Michael Ferrante, Paralegal

For the Respondent: Geoffrey Keating, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Giuseppina Arcuri, the applicant, was involved in an automobile accident on January 8, 2020, 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, 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 a non-earner benefit (“NEB”) of $185.00 per week from July 20, 2020 to January 22, 2021?

ii. Is the applicant entitled to $2,543.00 for vision therapy services, proposed by Dr. D’Orio Eye Care Clinic in a treatment plan/OCF-18 (“plan”) submitted October 22, 2021?

iii. Is the applicant entitled to $789.67 ($1,649.34 less $859.67 approved) for chiropractic services, proposed by Synergy Health in a plan submitted August 15, 2022?

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

3In her submissions, the applicant withdrew issues 3 and 5 listed in the Amended Case Conference Report and Order (“CCRO”) dated September 21, 2023.

RESULT

4I find that the applicant is not entitled to a NEB in the amount of $185.00 for the period from July 20, 2020 to January 22, 2021;

5The applicant is not entitled to the disputed treatment plans, and;

6Therefore, interest does not apply.

ANALYSIS

The applicant is not entitled to a NEB

7The applicant made limited submissions regarding the substantive basis for her entitlement to a NEB and instead, focuses her arguments on procedural errors made by the respondent which result in finding the disputed benefits payable.

8Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

9Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

10The applicant points to her Disability Certificate (“OCF-3”) dated July 6, 2020 completed by Djoanna Del Rosario, physiotherapist, which indicates the applicant can return to work, and she has suffered a complete inability to carry on a normal life. The OCF-3 provides evidence that undermines the applicant’s eligibility for a NEB, since the applicant’s ability to work does not satisfy the complete inability test in s.12 of the Schedule.

11The applicant argues that she applied for a NEB by submitting an Application for Accident Benefits (“OCF-1”) dated January 28, 2020 and an OCF-3 dated July 6, 2020. The applicant submits that she is entitled to a NEB from 4-weeks after the accident pursuant to s.12(3) of the Schedule.

12The respondent submits that the applicant cannot claim a NEB before July 20, 2020, from the date the OCF-3 was submitted, therefore the correct period in dispute is from July 20, 2020 to January 22, 2021.

13I find that although the respondent is not liable to pay a NEB for the first 4 weeks pursuant to s.12(3) of the Schedule, that doesn’t mean that the applicant is entitled to a NEB after 4 weeks regardless of when she completed her application. In fact, s.36(3) of the Schedule states that an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.

14I find that since the applicant did not submit a completed OCF-3 before July 20, 2020, she is not entitled to a NEB from 4-weeks after the accident, or from February 5, 2020. Therefore, I find that the applicant may claim a NEB from July 20, 2020 to January 22, 2021, and not from February 5, 2020 to January 22, 2021, as indicated in the CCRO. However, the OCF-3 does not support the applicant’s eligibility for a NEB because she has returned to work, and therefore, she has not suffered a complete inability to carry on a normal life. I have corrected the time period in the issue in dispute for a NEB to reflect this change.

Procedural requirements of s.36(4) of the Schedule

15As stated, the applicant makes limited submissions regarding her substantive entitlement to a NEB and instead, she makes procedural arguments that the respondent is in non-compliance with s.36(4) of the Schedule. I find that the applicant has not established that a NEB is payable due to the respondent’s non-compliance with section 36(4) of the Schedule.

16Relevant to this dispute, section 36(4) of the Schedule states that within 10 business days after the receipt of the application and a completed disability certificate, the insurer shall pay the specified benefit. Alternatively, it shall give the applicant notice explaining the medical and other reasons why the insurer requires an examination pursuant to s.44 of the Schedule or send a request to the applicant for additional information pursuant to s.33.

17Should the requirements outlined in s.36(4) of the Schedule not be met, s.36(6) of the Schedule is a clear shall-pay provision that plainly states that if the insurer fails to comply with 36(4) or (5) within 10 days, it shall pay the specified benefit for the period starting on the day of non-compliance and ending on the day it gives proper notice.

18The applicant submits that she submitted an OCF-1 dated January 28, 2020, and an OCF-3 dated July 6, 2020, supporting her entitlement to a NEB to the respondent. She further submits that the respondent provided an Explanation of Benefits (“EOB”) dated July 31, 2020, requesting further information, including an activities questionnaire, and clinical notes and records (“CNRs”) of the family physician from one-year pre-accident to date. The applicant further submits that she provided the requested documents to the respondent on August 26, 2020.

19The applicant further submits that the respondent maintained its denial by letter dated September 10, 2020, after receiving the requested information on August 26, 2020. The applicant submits that since the respondent did not provide a denial with a medical reason until January 22, 2021, when it provided the applicant with a copy of the Insurer Examination (“IE”) report dated December 9, 2020 by Dr. Frank Loritz, Dr. Deborah Cowman and Robert Campos, it must pay a NEB from 4 weeks after the accident to January 22, 2021, pursuant to s. 36(4) of the Schedule.

20The respondent submits that by letter dated July 31, 2020, it responded to the applicant’s application for a NEB within 10 business days of receiving the OCF-3 on July 20, 2020. The respondent further submits that in its letter dated July 31, 2020, it made s.33 requests for documents in compliance with s.36(4) of the Schedule. The respondent submits that although the applicant partially complied with the s.33 request on August 26, 2020, by providing the CNRs of Dr. Vasia Stefou, the activity questionnaire remained outstanding.

21The respondent submits that after receiving the CNRs of Dr. Stefou, it sent a letter dated September 10, 2020 to the applicant advising that it received the CNR’s of Dr. Stefou, but not the activity questionnaire. The respondent further stated it has not received all the information it requires to determine the applicant’s entitlement to a NEB, without “specific information with respect to which pre-accident activities you now completely limited from performing.” In addition, the respondent stated that it scheduled an IE to determine the applicant’s eligibility for a NEB.

22Since the respondent made a request pursuant to s.33 of the Schedule, the application for a NEB was suspended under s.36(4). In an EOB dated July 31, 2020, the respondent requested the s.33 documents to be provided by August 18, 2020. In the subsequent EOB dated September 10, 2020, the respondent states they have received the CNRs of Dr. Stefou, but not the activity questionnaire. As a result, the respondent does not have any information regarding the applicant’s pre-accident activities which she is completely unable to perform after the accident and it scheduled an IE to determine the applicant’s entitlement to a NEB. The applicant makes no submissions that the September 10, 2020 denial notice was non-compliant.

23The applicant argues that the respondent did not properly deny the NEB after all the requested documents were provided. However, not all the requested documents were provided since the applicant did not complete the activity questionnaire because it was not an OCF form. The applicant agrees that the January 22, 2021 denial is proper in accordance with the Schedule because it provided medical reasons for its denial of the applicant’s entitlement to a NEB.

24I find that after receiving a completed OCF-3 on July 20, 2022, the respondent provided a compliant denial letter dated July 31, 2022, by making a s.33 request for further records pursuant to s.36(4)(c) of the Schedule. The applicant makes no submissions on whether the requested documents were reasonably required for the respondent to determine the applicant’s entitlement to the benefit. Since the respondent made a s.33 request for further records, it was not required to provide medical reasons in it’s July 31, 2022 denial. The applicant had not provided the activity questionnaire to the respondent.

25I find that the respondent is not liable to pay a NEB as it provided a proper denial by letter dated July 31, 2022 by requesting medical records and a completed activity questionnaire.

26Therefore, I find that the respondent complied with s.36(4) of the Schedule in its denial of a NEB.

The applicant is not entitled to the proposed vision therapy

27I find that the applicant is not entitled to vision therapy because the respondent’s reasons for denial complied with the Schedule.

28The plan dated October 6, 2021 for visual therapy kit, visual therapy, forms and prop was completed by Noelda Fernandes, optometrist at Dr. D’Orio Eyecare Clinic in the amount of $2,543.00. The goals of the plan are to develop the necessary visual abilities to meet visual demands.

29The applicant did not make submissions on whether the plan was reasonable and necessary. Instead, the applicant’s submissions focus on alleged violations of s.38(8) of the Schedule and submits that these procedural errors should result in finding the disputed benefit payable.

30Section 38(8) 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.

31If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must 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 notice as described in s. 38(8).

32The 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.

33The applicant argues that the respondent’s denial of October 28, 2021 is improper, since it does not provide medical reasons and therefore, the respondent cannot rely on an improperly obtained IE report dated February 18, 2022 by Dr. Ranalli for medical reasons to support its denial.

34The respondent wrote to the applicant by letter dated October 28, 2021, denying the plan for visual therapy within 10 business days of receiving the plan on October 22, 2021. The respondent’s denial stated that they require an IE to determine if the plan is reasonable and necessary in its entirety, or if alternatives may be more effective from the injuries sustained in the accident. The respondent scheduled an IE with Dr. Paul Ranalli, neuro-ophthalmologist for February 7, 2022.

35The respondent sent a subsequent letter dated February 24, 2022 to the applicant with a copy of Dr. Ranalli’s IE report dated February 18, 2022, with a summary of Dr. Ranalli’s opinion that the applicant has reached her maximum pre-accident level of visual and neuro-ophthalmological function.

36The respondent submits that it is entitled to rely on the IE report in its February 24, 2022 denial, and I agree. In this case, I have found that the vision therapy was properly denied, and the applicant attended the IE.

37I find that the October 28, 2021 denial was compliant with s.38(8) of the Schedule. The letter identified the plan in dispute as vision therapy and stated that it is unclear whether the recommended plan is reasonable and necessary in its entirety, or if alternatives may be more effective for the applicant’s injuries. As a result, we require an IE to determine if the requested plan is reasonable and necessary. Based on the wording used by the respondent in its October 28, 2021 letter, I find that the reason for denial is “clear and sufficient enough to allow an unsophisticated person to make an informed decision” on whether to attend the IE or to challenge the insurer’s decision. I see no issue with s.38 compliance that would make the plan payable.

38Given that the respondent provided a compliant denial, I find that the applicant is not entitled to payment for this plan.

The applicant is not entitled to the outstanding amount of $786.67 for the plan dated July 29, 2022

39I find that the applicant has not established that the unapproved portion of the July 29, 2022 plan is payable.

40To receive payment for a treatment plan under sections 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 same are reasonable.

41The applicant submitted a plan dated July 29, 2022 for chiropractic services, proposed by Dr. Sanjib Ghoshdastidar, chiropractor, of Synergy Health, for fourteen 1-hour physical rehabilitation sessions at a rate of $112.81 per hour and documentation support activity in the amount of $70.00, for a total amount of $1,649.34. The goals of the plan are for pain reduction, increase strength and range of motion and return the applicant to her pre-accident social and recreational activities. The respondent partially approved the treatment plan in the amount of $859.67 for seven 1-hour physical rehabilitation sessions and documentation support activity. The unapproved amount of $786.67 was comprised of seven, 1-hour physical rehabilitation sessions at a rate of $112.81 per hour.

42The applicant submits that in the respondent’s denial letter dated October 27, 2022, it relied on the IE report dated October 18, 2022, by Dr. Pravesh Jugnundan in partially approving seven of fourteen sessions, without sufficient reasons for denying the unapproved portion of the plan. However, the applicant has not addressed why the unapproved portion of 7 physical rehabilitation sessions are reasonable and necessary, nor has she produced any other medical documentation in addition to the disputed treatment plan and the IE report of Dr. Jugnundan.

43The respondent relies on the report dated October 18, 2022 by Dr. Jugnundan, which states that seven physical rehabilitation sessions are appropriate to wean the applicant off formal therapy, and continue with self-directed exercises. In his report, dated October 18, 2022, Dr. Jugnundan indicates that the applicant had returned to her pre-accident, full-time employment at T.J. Maxx Canada before she went on sick leave for mental health issues in September 2022. Dr. Jugnundan further indicates that the applicant reported that her lower extremity complaints have nearly resolved and her neck and low back symptoms have improved. Although Dr. Jugnundan opines that the applicant has likely reached maximum medical improvement, he will allow seven sessions on a twice weekly basis for additional improvement, if any. Dr. Jugnundan further recommends a self-directed home exercise program and ergonomic workstation.

44The respondent argues that the applicant has not met her onus or provided an explanation for the additional amount of $786.67 for another seven physical rehabilitation sessions beyond the amount which has already been approved.

45I agree with the respondent that the applicant has not established how the additional seven physical rehabilitation sessions are reasonable and necessary for her accident-related injuries because the medical evidence suggests that she has likely reached maximum medical improvement. Instead, the applicant argues that since Dr. Jugnundan did not explain the reason for his denial of the unapproved portion of the plan, it is payable. Although Dr. Jugnundan approves an additional seven sessions, there is no medical evidence to suggest that the applicant will gain further improvement from the treatment.

46I find that the applicant has not proven on a balance of probabilities, that she is entitled to the unapproved amount of $786.67 of the July 29, 2022 treatment plan.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating her entitlement to a NEB and the treatment plans in dispute, no benefits are owing and interest does not apply.

ORDER

48For the reasons set out above, I find that:

i. The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from July 20, 2020 to January 22, 2021;

ii. The applicant is not entitled to the treatment plans is dispute;

iii. Interest is not payable, and;

iv. The application is dismissed.