Hussein v. Aviva Insurance Canada, 2025 CanLII 1843

Licence Appeal Tribunal

Citation: Hussein v. Aviva Insurance Canada, 2025 CanLII 1843

Licence Appeal Tribunal File Number: 23-000748/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:

Abdirahman Hussein

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Jennifer Cosentino, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Abdirahman Hussein, the applicant, was involved in an automobile accident on March 13, 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 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:

i. Is the applicant entitled to $2,200.00 for an occupational therapy assessment at iScope Concussion and Pain Centers proposed by Helen Leimonis, occupational therapist, in a treatment plan/OCF-18 (“plan”) dated October 22, 2021?

ii. Is the applicant entitled to $4,300.00 for social worker counselling services from iScope Concussion and Pain Centers proposed by Helen Leimonis, in a plan dated November 16, 2021?

iii. Is the applicant entitled to $2,885.20 for chiropractic services from lslington North Chiropractic proposed by Mohammed Agyemang, chiropractor, in a plan dated March 8, 2022?

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?

RESULT

3The applicant has not demonstrated that the denial notices for the treatment plans in dispute contravene s.38(8) of the Schedule. He is not entitled to these treatment plans on this basis and has made no submissions on the reasonableness and necessity of the plans. Therefore, the treatment plans, interest and an award are not payable.

PROCEDURAL ISSUES

The applicant did not file late documentation

4In its hearing submissions, the respondent requests that none of the records listed in the Case Conference Report and Order (“CCRO”) dated August 23, 2023 should be considered as they were not provided to the respondent prior to the final production deadline of September 28, 2023. However, I find that the applicant did not file any of the documents listed in the CCRO, therefore it is not necessary to consider whether these documents are admitted into evidence.

The applicant’s submissions are admitted into evidence

5The CCRO ordered that the applicant provide his written submissions no later than 30 calendar days before the written hearing (April 3, 2024).

6The applicant provided his submissions to the respondent on April 5, 2024. Since the applicant’s submissions were due on April 3, 2024, the respondent had less time to review the evidence and file responding submissions. In addition, the applicant provided his reply submissions to the respondent on April 26, 2024 after 5:00 p.m.

7In its hearing submissions, the respondent requests that the applicant’s submissions not be considered because they were not delivered to the respondent 30 days before the written hearing date of May 3, 2024.

8The applicant did provide his written submissions in accordance with the CCRO. The respondent has not made submissions on prejudice that would result if the applicant’s submissions were included. I will take the applicant’s submissions into account in this hearing.

9I deny the respondent’s request to exclude the applicant’s submissions.

10The applicant submits that his submissions were filed late because his representative was seriously ill and did not cause any significant prejudice to the respondent. I am exercising my discretion to include the applicant’s submissions in the hearing record. Despite the lateness of the applicant’s submissions, I find it did not result in significant prejudice to the respondent and the applicant would be significantly prejudiced if its submissions were excluded because the applicant has not abandoned his application.

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 10 pages in length.

12The respondent argues that in addition to the applicant’s 12 pages of submissions, he refers to “Tab R” of the applicant’s documents which includes an additional 12 pages of submissions in chart format, which should not be considered by the Tribunal.

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 endnotes which amounted to 5.5 pages of his 12-page submissions. The applicant further submits that “Tab R” consists of only two pages if it was formatted as set out in the CCRO. Therefore, the applicant argues he didn’t exceed the 10-page limit set out in the CCRO, as the pages including quotes from various case law and endnotes should be excluded.

14I find that the applicant exceeded the 10-page limit as set out in the CCRO, which includes submissions being made on the endnotes and case law to support his position on entitlement. The actual pages of endnotes 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. The discretion lies with the hearing adjudicator. 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 admit or strike any submissions in excess of the 10-page limits set out in the CCRO. However, in this case, I will admit non-compliant submissions.

ANALYSIS

16The applicant makes no submissions as to the reasonableness or necessity of the treatment plans in dispute. The applicant’s focus in his submissions is on alleged procedural errors made by the respondent. The applicant submits that these procedural errors should result in finding the disputed benefits payable.

17Section 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.

18If 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).

19Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.

20The 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.

Is the occupational therapy assessment payable?

21I find that the applicant has not established that the plan dated October 22, 2021 is payable.

22The plan for an occupational therapy assessment dated October 22, 2021 is by Helen Leimonis, occupational therapist of iScope Concussion and Pain Centers. The respondent wrote to the applicant on November 23, 2021 denying the benefits, 20 business days after receiving the plan on October 25, 2021. I find that the respondent, therefore breached the 10 business day timeline in s. 38(8) of the Schedule. Pursuant to s.38(11), the insurer shall pay for all goods and services described in the plan starting on the 11th business day until it gives proper notice.

23The applicant submits that the November 23, 2021 letter was an improper denial with limited, non-specific explanations, and the respondent cannot rely on the IE report of Dr. Jugnundan since its based on an improper denial. The applicant makes no submissions why the notice of examination (“NOE”) dated November 23, 2021 is non-compliant with s.44(5) of the Schedule.

24The November 23, 2021 letter states that “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient’s care, treatment, and prognosis”. The respondent further stated that “the patient’s subjective physical complaints appear to remain unchanged despite continuing treatment”. The respondent also requested information about the insured’s medical condition that the insurer does not have but requires to determine whether the treatment plan is reasonable and necessary. In addition, the respondent stated that it required an Insurer’s Examination (“IE”) to determine whether the recommended treatment is reasonable and necessary for the injuries the applicant sustained as a result of the accident.

25Despite rescheduling the IE twice, the applicant did not attend an in-person examination. A paper review decision dated June 7, 2022 by Dr. Pravesh Jugnundan was sent to the applicant on June 21, 2022, which indicates the applicant’s accident-related injuries have reached maximum medical improvement. The respondent based its denial on the conclusions of Dr. Jugnundan of uncomplicated soft tissue injuries which do not require further treatment.

26I find that the November 23, 2021 letter was a valid denial letter albeit ten days late. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

27I am bound by the Divisional Court decision of Aviva General Insurance v. Catic, 2022 ONSC 6000. The Court found that s.38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The applicant has not provided evidence that the remaining items of the treatment plan in dispute were incurred prior to November 23, 2021. As such, I find that the plan dated October 22, 2021 is not payable by operation of s.38(11).

Is the plan for counselling services payable?

28I find that the applicant has not established that the November 16, 2021 plan is payable because the respondent’s notices were compliant with the Schedule.

29The plan dated November 16, 2021 for counselling services by Tracy Gostlow, social worker at iScope Concussion and Pain Centers was submitted on December 10, 2021. The respondent wrote to the applicant on December 22, 2021, which is within 10 business days of receiving the plan as required by the Schedule. In the denial letter, the respondent stated that “the types of treatment does not appear consistent with the patient’s diagnosis” and it scheduled an IE to determine whether the proposed treatment was reasonable and necessary. The respondent also requested relevant or necessary documents regarding the applicant’s medical condition to determine whether the plan is reasonable and necessary.

30The applicant submits that the December 22, 2021 letter was an improper denial with limited, non-specific explanations and the respondent cannot rely on the IE report of Dr. Lotfalizadeh because its based on an improper denial. However, the applicant makes no submissions why the NOE dated December 22, 2021 is non-compliant with s.44(5) of the Schedule.

31A notice of examination dated January 14, 2022, indicates that an IE was rescheduled with Dr. Mehdi Lotfalizadeh, psychologist, to take place on February 15, 2022.

32Following the IE, by letter dated February 25, 2022, the respondent provided a copy of the report of Dr. Lotfalizadeh dated February 24, 2022, in which Dr. Lotfalizadeh found no accident-related psychological impairment. The respondent denied the benefits on February 25, 2022 on the basis that it is unreasonable and necessary.

33I find that the December 22, 2021 and February 25, 2022 notice letters were compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notices, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.

34Given that the respondent provided proper notice and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met his burden to establish entitlement to this plan.

Is the plan for chiropractic services payable?

35I find that the applicant has not established that the March 8, 2022 plan is payable because the respondent’s denial notices were complaint with the Schedule.

36The plan dated March 8, 2022 for chiropractic services by Dr. Mohammed Agyemang, chiropractor at Islington North Chiropractic was submitted on March 8, 2022. The respondent wrote to the applicant on March 21, 2022, which is within 10 business days of receiving the plan as required by the Schedule. In the denial letter, the respondent again stated that there appears to be pre-existing or concurrent medical conditions exist that might affect the patient’s care, treatment, and prognosis. The respondent further stated that the patient’s subjective physical complaints appear to remain unchanged despite continuing treatment. In addition, the respondent requested further documentation and stated that it required an IE to determine whether the recommended treatment is reasonable and necessary for the injuries the applicant sustained as a result of the accident.

37The applicant submits that the March 21, 2022 letter was an improper denial with limited, non-specific explanations and the respondent cannot rely on the IE report of Dr. Jugnundan because its based on an improper denial. However, the applicant makes no submissions why the NOE dated March 24, 2022 is non-compliant with s.44(5) of the Schedule.

38An IE was rescheduled with Dr. Jugnundan to take place on May 12, 2022.

39Following the IE, by letter dated May 26, 2022, the respondent provided a copy of the report of Dr. Jugnundan dated May 25, 2022, in which Dr. Jugnundan found significant pre-existing medical conditions and concluded that the applicant had reached maximum medical improvement regarding his accident-related injuries. The respondent denied the benefits on May 26, 2022 on the basis that they are unreasonable and unnecessary.

40I find that the March 21, 2022 and May 26, 2022 notice letters were complaint with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notices to allow the applicant to make an informed decision as to whether to accept or dispute the decision.

41Given that the respondent provided proper notice and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met his burden to establish entitlement to this plan.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

Award

43The 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. I find an award is not appropriate because the respondent did not unreasonably withhold payment as the denials were based on reasonable, objective assessments of the applicant.

ORDER

44For the reasons set out above, I find that:

i. The treatment plans in dispute for an occupational therapy assessment dated October 22, 2021, for counselling services dated November 16, 2021 and for chiropractic services dated March 8, 2022 are not payable;

ii. The applicant is not entitled to interest or an an award, and;

iii. The application is dismissed.