Citation: Woodley v. Aviva General Insurance, 2025 ONLAT 23-002376/AABS

Licence Appeal Tribunal File Number: 23-002376/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:

Curtney Woodley

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Alexander M. Voudouris, Counsel

For the Respondent:

Natalie Spinelli, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Curtney Woodley, the applicant, was involved in an automobile accident on March 18, 2021, 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:

1. Is the applicant entitled to the assessments proposed by Active Mobility Rehab, as follows: a) $2,200.00 for a psychological assessment, in a treatment plan ("OCF-18") dated October 27, 2021 b) $2,510.18 for chiropractic services, in an OCF-18 dated July 5, 2021 c) $3,433.61 for psychological services, in an OCF-18 dated November 8, 2021

2. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by A&B Medical Assessments in an OCF-18 dated April 15, 2022?

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

4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

3The applicant sent email correspondence to the Tribunal on May 8, 2024, advising that he withdrew issues 1, 2(d), (e) and (f), and 3 (b), as listed on the case conference report and order ("CCRO"), dated October 16, 2023. The applicant confirmed in his submissions that the remaining substantive issues left in dispute are as listed above.

4The applicant submits that the CCRO contained the following errors:

1. The OCF-18 for a psychological assessment listed as issue 1(a) is incorrectly dated on the CCRO and is actually dated June 3, 2021.
2. The OCF-18 for chiropractic services listed as 1(b) is incorrectly dated on the CCRO and is actually dated June 29, 2021.
3. The OCF-18 for a chronic pain assessment listed as 2 is incorrectly dated on the CRRO and is actually dated March 11, 2022.

5I have reviewed the evidence and find that the dates identified by the applicant are correct. As such, I will address them as same below.

RESULT

6The expenses incurred under the treatment plans for a psychological assessment dated June 3, 2021, chiropractic services dated June 29, 2021, and a chronic pain assessment dated March 11, 2022, are payable pursuant to s. 38(11) of the Schedule, plus interest.

7The applicant is not entitled to the treatment plan for psychological treatment dated November 8, 2021, or an award.

ANALYSIS

Section 38(8) and 38(11) of the Schedule

8The applicant did not make submissions with respect to whether the treatment plans in dispute were reasonable and necessary. Rather, his arguments solely centre on the procedural requirements of s. 38(8) and s. 38(11) of the Schedule.

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 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).

11The respondent submits that in all of its notices addressing the issues in dispute, it reviewed the treatment plans, along with the clinical notes and records provided on file at the time, of which only contained one post-accident entry of Dr. Gindi dated April 3, 2021. The respondent further submits that it relied on the insurer examinations it had on file and compared the medical documents to the MIG to properly advise the applicant that their injuries were considered minor.

The OCF-18 for a psychological assessment dated June 3, 2021

12I find that the respondent's denial letter dated June 17, 2021, is non-compliant with s. 38(8) of the Schedule.

13The applicant submits that the explanation within respondent's denial letter does not constitute a medical reason and all the other reasons. The applicant argues that it simply elaborates the insurer's belief that the MIG applies.

14The denial letter dated June 17, 2021, for the OCF-18 for a psychological assessment, in the amount of $2,200.00, submitted on June 3, 2021, stated:

"I have reviewed the medical opinion of Rick Lindalin the OCF-18 dated June 3, 2021. The injuries identified in the previous treatment plans dated April 6, 2021, and May 18, 2021, completed by Jordan Mackensie and clinical notes and records from Dr. Raafat Gindi appear predominantly minor including sprains and strains. Additionally, your health practitioner has not determined and submitted compelling evidence of a pre-existing condition, documented by a health professional before the accident, that would prevent you from achieving maximal medical recovery if you are subject to the goods and services authorized under the Minor Injury Guideline. Aviva therefore believe [sic] the Minor Injury Guideline applies. We are unable to consider this Treatment Plan(s) based on the medical documentation we have indicating your impairment is predominantly a minor injury. Please review section 38. (9) of the Statutory Accident Benefits Schedule. Therefore, the maximum payable for a predominantly minor injury is $3500 which has already been reached. Please review section 18. (1) of the Statutory Accident Benefits Schedule. Please refer to the last Healthcare Spending Account letter previously sent for a breakdown of benefits paid."

15While I appreciate that the respondent indicated in its denial letter that the applicant's injuries are considered to be within the MIG, some or partial compliance with the Schedule is not enough. I find that the respondent's denial letter does not reference any specific CNRs of Dr. Raafat Gindi, nor the specific injuries that are "minor" that it considered when rendering its decision. The respondent, in its submissions, argues that the CNRs of Dr. Gindi do not contain any notations regarding psychological sequelae or impairments relating to the subject accident. If the respondent relied on this information when rendering its decision, then the respondent should have indicated same in the denial letter.

16In my view, simply referring to the "clinical notes and records" without providing a single reference, is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. This also does not serve the Schedule's consumer protection goal.

17The respondent further submits that it properly denied the treatment plan in an Explanation of Benefits ("EOB") dated August 17, 2021.

18The EOB dated August 17, 2021, for the OCF-18 dated June 3, 2021, states:

"Please review the enclosed insurer's examination completed by CanAssess under section 44 of the Statutory Accident Benefits Schedule. The examination was completed by Dr. Arpita Biswas and dated August 6, 2021. The assessors reviewed the Treatment Plan (OCF-18) submitted by Active Mobility Rehab dated June 3, 2021, for psychological assessment. They determined the treatment and assessment plan recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment or assessments incurred relating to this treatment plan."

19Unlike the initial denial letter, I find that the respondent's August 17, 2021, EOB complies with s. 38(8) of the Schedule. In this letter, the respondent provided a medical reason, that being the opinion of Dr. Biswas, and enclosed a copy of this assessor's report for the applicant's review. As such, I find that the respondent's EOB was clear and sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the denial.

20Given the foregoing, I find that the respondent's initial denial letter is not compliant with s. 38(8) of the Schedule but that the subsequent August 17, 2021, EOB is compliant. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under this treatment plan between the 11th business day after the plan was submitted until the day the respondent cured its deficient notice by way of EOB dated August 17, 2021.

The OCF-18 for chiropractic services dated June 29, 2021

21I find that the respondent's denial letter dated July 9, 2021, is non-compliant with s. 38(8) of the Schedule.

22The applicant submits that the respondent's denial letter does not contain medical reasons, rather it simply elaborates that it believes the MIG applies.

23The denial letter dated July 9, 2021, for the OCF-18 for chiropractic services, in the amount of $2,510.18, submitted on June 29, 2021, stated:

"I have reviewed the medical opinion of Mackensie Jordan in the OCF-18 dated June 29, 2021. The injuries identified appear predominantly minor including whiplash and sprains and strains. Additionally, your health practitioner has not determined and submitted compelling evidence of a pre-existing condition, documented by a health professional before the accident, that would prevent you from achieving maximal medical recovery if you are subject to the goods and services authorized under the Minor Injury Guideline. Aviva therefore believe the Minor Injury Guideline applies. We are unable to consider this Treatment Plan(s) based on the medical documentation we have indicating your impairment is predominantly a minor injury. Please review section 38. (9) of the Statutory Accident Benefits Schedule. Therefore, the maximum payable for a predominantly minor injury is $3500 which has already been reached. Please review section 18. (1) of the Statutory Accident Benefits Schedule. Please refer to the last Healthcare Spending Account letter previously sent for a breakdown of benefits paid.

...In accordance with section 38 (8) of the Statutory Accident Benefits Schedule, we require you to attend an examination to confirm your diagnosis. Examination details are as follows:"

24The examination details are not included within the denial letter despite language indicating same.

25While I appreciate that the respondent indicated in its denial letter that the applicant's injuries are considered to be within the MIG, simply referring to ''your health practitioner' without referencing which practitioner it is relying on, is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. What is more, the respondent's denial letter is generic in nature stating, "injuries identified appear predominantly minor including whiplash and sprains and strains." As I have found in my decision above, some or partial compliance with the Schedule is not enough. I find that stating "including whiplash and sprain and strains" is not clear and does not reference a specific injury listed on the OCF-18 in dispute, nor referenced any medical documentation other than the OCF-18 in dispute. This also does not serve the Schedule's consumer protection goal.

26The respondent in its submissions argues that no medical documentation was provided by Jordan Mackensie of Active Mobility Rehab as to why the proposed treatment is reasonable and necessary. If the respondent needed additional information to render its decision, then the respondent should have indicated same in the denial letter. Instead, the denial letter states that the applicant is required to attend an examination to confirm his diagnosis without referencing what diagnosis, or lack thereof, it is relying on. Again, this is not clear to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

27The respondent further submits that it properly denied the treatment plan in an Explanation of Benefits ("EOB") dated August 30, 2021.

28The EOB dated August 30, 2021, for the OCF-18 dated June 29, 2021, states:

"Please review the enclosed insurer's examination completed by CanAssess under section 44 of the Statutory Accident Benefits Schedule. The examination was completed by Dr. Greg Gelman and dated August 26, 2021. The assessors reviewed the Treatment Plan (OCF-18) submitted by Active Mobility Rehab dated June 29, 2021, for chiropractic and massage therapy treatment. They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan."

29Unlike the initial denial letter, I find that the respondent's EOB complies with s. 38(8) of the Schedule. In this letter, the respondent provided a medical reason, that being the opinion of Dr. Gelman, and enclosed a copy of this assessor's report for the applicant's review. As such, I find that the respondent's EOB was clear and sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the denial.

30Given the foregoing, I find that the respondent's initial denial letter is non-compliant with s. 38(8) of the Schedule but the subsequent August 30, 2021, EOB is compliant. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under the treatment plan between the 11th business day after the plan was submitted until the day the respondent cured its deficient notice by way of EOB dated August 30, 2021.

The OCF-18 for psychological services dated November 8, 2022

31I find that the respondent's denial letter dated November 17, 2021, is compliant with s. 38(8) of the Schedule.

32The applicant submits that the denial letter does not contain any medical reasons and is simply an elaborate statement that the respondent believes the MIG applies. The applicant further argues that the reference made to Dr. Biswas' report concluding the applicant did not meet the threshold for psychological diagnosis, is a "bald statement" and does not allow the applicant to assess the reason for the denial and whether he should challenge same. The applicant submits that nowhere in the denial letter does the respondent challenge the efficacy of the OCF-18.

33The denial letter dated November 17, 2021, for the OCF-18 for psychological services, in the amount of $3,433.61, submitted on November 8, 2022, stated:

"We are unable to consider this Treatment Plan(s) based on the medical documentation we have indicating your impairment is predominantly a minor injury. Please review section 38. (9) of the Statutory Accident Benefits Schedule. Therefore, the maximum payable for a predominantly minor injury is $3500 which has already been reached. Please review section 18. (1) of the Statutory Accident Benefits Schedule. Please refer to the last Healthcare Spending Account letter previously sent for a breakdown of benefits paid. I have reviewed the medical opinion of Rick Lindal in the OCF-18 dated November 8, 2021. Based on insurer's examination report dated August 6, 2021 completed by Dr. Arpita Biswas with CanAssess it was determined your psychological presentation does not meet the threshold to qualify for any psychological diagnosis. Furthermore, based on the insurer's examination reports dated August 6, 2021 and August 26, 2021, completed by Dr. Arpita Biswas and Dr. Greg Gelman it was determined your accident-related injuries are minor in nature and fall within the definition of a Minor Injury as defined in the Statutory Accident Benefits Schedule (SABS). Aviva therefore believes the Minor Injury Guideline applies and does not agree to fund the treatment and assessment plan as outlines above. For your review we have enclosed a copy of the INSURER FAX BACK page."

34I find that the denial letter provided medical reasons for the denial and was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. The denial letter not only references minor injury and two insurer's examination reports, but also clearly states that the applicant's psychological presentation does not meet the threshold for a psychological diagnosis based on the report of Dr. Biswas. The applicant may disagree with the stated reasons or with the fact that the respondent relied on previously obtained s. 44 assessments. However, that does not render a denial invalid.

35Therefore, I find that the respondent's denial letter, dated November 17, 2021, is compliant with s. 38(8) of the Schedule and the treatment plan is not payable.

The OCF-18 for a chronic pain assessment dated March 11, 2022

36I find that the respondent's denial letter dated March 29, 2022, is non-compliant with s. 38(8) of the Schedule.

37The applicant submits that the denial letter relies solely on the insurer's belief that the MIG applies. The applicant further argues that nowhere in the denial letter does the respondent challenge the efficacy of the OCF-18, and its use of the phrase reasonable and necessary is in the context of the applicability of the MIG.

38The respondent submits that the treatment plan was properly denied and argues that the applicant has not provided any medical documentation to warrant a chronic pain assessment. The respondent further relies upon the s. 44 assessment of Dr. Gelman, dated August 26, 2021, who concluded that the applicant sustained sprain/strain injuries which can be treated within the MIG.

39The denial letter dated March 29, 2022, for the OCF-18 for a chronic pain assessment, in the amount of $2,486.00, submitted on March 11, 2022, stated:

"We are unable to consider this Treatment Plan(s) based on the medical documentation we have indicating your impairment is predominantly a minor injury. Please review section 38. (9) of the Statutory Accident Benefits Schedule. Therefore, the maximum payable for a predominantly minor injury is $3500 which has already been reached. Please review section 18. (1) of the Statutory Accident Benefits Schedule. Please refer to the last Healthcare Spending Account letter previously sent for a breakdown of benefits paid. For your review we have enclosed a copy of the INSURER FAX BACK page. I have reviewed the medical opinion of Michael Gofeld in the OCF-18 dated March 11, 2022. The injuries identified appear predominantly minor including muscle strains. Further the insurer's examination reports dated August 6, 2021, and August 26, 2021 from CanAssess it was determined your accident related injuries are minor in nature and fall within the definition of a Minor Injury as defined in the Statutory Accident Benefits Schedule (SABS). Therefore, the above noted Treatment and Assessment Plan is considered to be no reasonable and necessary as a direct result of accident-related injuries."

40While I am alive to the fact that the respondent indicated in its denial letter that the applicant's injuries are considered to be within the MIG, again, some or partial compliance with the Schedule is not enough. I find that the respondent's denial letter is vague and does not reference any specific "minor" injuries that it considered when rendering its decision. Referring to the 'medical documentation we have' without providing a clear reference to same, is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. This also does not serve the Schedule's consumer protection goal.

41Moreover, I differentiate this denial letter from my reasonings above because each denial letter is to be considered individually. While I found in my previous reasonings referencing the IE reports to be clear and sufficient, I am not satisfied that if an unsophisticated person were to receive this letter, they would have a clear and sufficient understanding of the denial, such that they would be able to make an informed decision whether to accept or dispute the decision. Despite the respondent pointing to "insurer examination reports dated August 6, 2021, and August 26, 2021", it did not enclose a copy of same for the applicant's review. I find that a reference to an insurer's examination only by citing its date without referencing its author, nor the type of examination it is as it relates to the proposed treatment plan to be insufficient. Despite the respondent submitting that it relied on Dr. Gelman's report dated August 26, 2021, it should have included this language within the denial letter and enclosed a copy for the applicant's review.

42I am not bound by Tribunal decisions, and I am not persuaded by the decisions relied upon by the respondent in Gomes v Economical Insurance, 2021 CanLII 50773 (ON LAT) ("Gomes"), and D.D. v Aviva General Insurance Company, 2020 CanLII 37661 (ON LAT) ("D.D."). In Gomes, a citation of the insurer's denial letter is not included, rather a summary of its contents. This does not help me to compare the respondent's denial letter, in the present case, from the finding in Gomes. Moreover, while the respondent relies on D.D. wherein the insurer is not held to a standard of perfection when adjusting claims, the decision in D.D. was made on the basis that the applicant did not provide sufficient medical documentation to support the treatment claimed. It is unclear from D.D. what the insurer's denial letter indicated, but in the present case, the respondent did not reference or indicate what information was missing or needed when rendering its decision. If the respondent required further information to render its decision, then the respondent should have specifically indicated same in the denial letter.

43Given the foregoing, I find that the respondent's denial letter is non-compliant with s. 38(8) of the Schedule. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under the treatment plan between the 11th business day after the plan was submitted until the day the respondent cured its deficient notice. If the respondent did not cure its deficient notice prior to this hearing, the applicant may incur these expenses, and provided they are properly invoiced, the respondent is thereafter liable to pay these expenses. To be clear, it is no longer open to the respondent to cure the denials that I have found deficient: Aviva v Suarez, 2021 ONSC 6200 at paras. 35-36.

Interest

44The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

45I find that the applicant is not entitled to an award pursuant to s. 10 of Reg. 664.

46Pursuant to s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour", which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets these criteria.

47The applicant submits that there is an abundance of jurisprudence with respect to providing medical reasons in treatment plan denials, and the respondent being a sophisticated insurer, knew its obligations. The applicant further submits that the respondent failed to deliver proper notices and therefore denied the OCF-18s in dispute without lawful reasons, which is clearly unreasonable withholding and delaying of the payment of the OCF-18s.

48The respondent submits that the applicant has not provided any evidence to support a finding of an award. The respondent argues that at all times it adjusted the applicant's claim in good faith.

49Although I found that the respondent did not comply with s. 38(8) of the Schedule in issues 1(a) and (b), and 2, I do not find that its conduct rose to the level that would substantiate the applicant's request for an award despite finding that denial letters did not meet the standard of notice required by the Schedule. This is because I find that the respondent's non-compliance with s. 38(8) to be a wrong adjusting decision, rather than conduct that was "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate" that I would deem to warrant an award.

50The respondent is therefore not liable to pay an award.

ORDER

51I find that:

i. The expenses incurred under the treatment plan for a psychological assessment dated June 3, 2021, are payable pursuant to s. 38(11) of the Schedule;

ii. The expenses incurred under the treatment plan for chiropractic services dated June 29, 2021, are payable pursuant to s. 38(11) of the Schedule;

iii. The applicant is not entitled to the treatment plan for psychological treatment dated November 8, 2021;

iv. The expenses incurred under the treatment plan for a chronic pain assessment dated March 11, 2022, are payable pursuant to s. 38(11) of the Schedule;

v. The applicant is entitled to interest pursuant to s. 51 of the Schedule; and

vi. The respondent is not liable to pay an award.

Released: January 10, 2025

Nadia Mauro

Adjudicator```