Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-007391/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:
Sobhi Srour
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Steven Wilder, Counsel
For the Respondent: Joanne Witt, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sobhi Srour, the applicant, was involved in an automobile accident on March 12, 2022, 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.
SUBSTANTIVE ISSUES
2The substantive issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 12, 2022, to date and ongoing?
ii. Is the applicant entitled to $1,796.00 for occupational therapy services proposed by Functionability Rehabilitation Services LP (“Functionability”) in a treatment plan/OCF-18 (“plan”) dated June 27, 2022?
iii. Is the applicant entitled to $563.18 for transportation for insured aid submitted on a claim form (OCF-6) dated October 3, 2022?
iv. Is the applicant entitled to $4,370.88 for other assistive devices proposed by Functionability in a plan dated September 30, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order dated January 17, 2024 lists the amount of the plan for assistive devices set out as issue 2(iv) above as $2,767.53, however in their submissions, both parties agree that the correct amount should be $4,370.88.
RESULT
4The applicant is not entitled to an IRB.
5The applicant is entitled to the plan for occupational therapy services, if incurred.
6The applicant is not entitled to the OCF-6 for transportation for insured aid.
7The applicant is not entitled to the plan for other assistive devices.
8The respondent is not liable to pay an award.
9Interest is payable on any overdue payment of benefits.
ANALYSIS
The applicant is not entitled to an IRB
10The applicant has not proven on a balance of probabilities that he is entitled to an IRB.
11To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment (“pre-104 test”). The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
12To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience (“post-104 test”).
13The applicant filed a letter with the Tribunal dated December 22, 2022 from the respondent to the applicant. In the letter, the respondent advised that it was terminating the applicant’s benefits based on its investigation and determination that the incident that occurred on March 12, 2022 was an assault and did not meet the definition of an “accident” as defined in the Schedule. The respondent further indicated in the letter that it would not be requesting any repayment of the medical rehabilitation benefits or the income replacement benefits. The respondent also directed the applicant to the procedures available to him to pursue an appeal with the Tribunal.
14The applicant applied to the Tribunal for resolution of the dispute between the parties that he was involved in an accident as defined by the Schedule. A preliminary issue decision was released on February 22, 2024, wherein the Tribunal held that the applicant established that the incident that took place on March 12, 2022 was an “accident,” as defined in s. 3(1) of the Schedule and that this matter would proceed to a hearing on the substantive issues. The applicant submits that after the Tribunal made this determination, no medical assessments, opinions, or other reasons were provided by the respondent to justify its denials of all issues in dispute.
15The applicant relies on several Tribunal decisions in submitting that, without a proper denial by the respondent, he is entitled to the IRB.
16Specifically, the applicant relies on the Tribunal decision of Robinson v. Aviva Insurance Company of Canada, 2023 CanLII 40082 (ON LAT) (“Robinson”), and the Supreme Court of Canada decision of Smith v. Co-Operators General Insurance Co., 2002 SCC 30 (“Smith”), submitting that these decisions outline the insurer’s requirements when denying a benefit, which include the obligation to “provide valid or other reasons for the denial.” The applicant argues that the respondent is at odds with the decisions of Robinson and Smith since it did not have any basis for its denial.
17I find that the decisions of Smith and Robinson are distinguishable in that these cases deal with whether the applicant was statute-barred from proceeding to a hearing, which turned on whether the respondent provided a clear and unequivocal denial. In these cases, since it was found that the respondent did not provide a proper denial, the remedy was that the applicant was not statute-barred from proceeding with their claim. These cases did not hold that the applicant was entitled to the benefits claimed based on the respondent’s improper denial.
18The applicant also relies on the decision of Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), submitting that there must be meaningful reasons given for the denial and that “boilerplate” statements will constitute no reasons at all. I find that the Hedley decision is distinguishable as it considers the wording in s. 38(8) of the Schedule, which deals with claims for medical and rehabilitation benefits, as well as approval for assessments, and does not apply to income replacement benefits.
19The applicant further relies on the decision of Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (“Turner”), submitting that the Court of Appeal noted that where “the reasons given are legally wrong the insured will succeed” when it comes to challenging the denial. The applicant submits that, given that the respondent’s reasons for their denials are now proven to be legally wrong, the applicant is entitled to an IRB.
20I find that the Court in Turner clearly held that the insurer is obligated to give the insured reasons for cancelling the benefit, however the reasons do not have to be legally correct. The Court found that the purpose of the requirement to give reasons is to permit the insured to decide whether to challenge the cancellation. It stated that if the reasons are wrong the challenge will succeed, as it did in this case as set out in the preliminary issue decision. In my view, however, even if successful in challenging the underlying reason for the cancellation or denial (in this case, that the incident was an accident as defined by the Schedule), the applicant still bears the burden of establishing entitlement to the benefit under the relevant section of the Schedule. In this case, for the IRBs in dispute, this means establishing entitlement pursuant to sections 5 and 6.
21The respondent submits that an IRB was paid to the applicant covering the period of March 20, 2022 to December 10, 2022 in the amount of $15,200.00. The respondent further submits that paystubs produced by the applicant indicate that he returned to his pre-accident employment as of January 2023, if not earlier. The respondent takes the position that an IRB was paid for the appropriate period of entitlement based on the applicant’s medical records and paystubs, and that no further IRB is owed to the applicant.
22The applicant’s argument for ongoing entitlement to an IRB is based on his position that the respondent did not provide a medical basis for the denial in that its reasons for terminating payment was based on the incorrect position that the applicant was not involved in an accident. In Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, the Court of Appeal held that when terminating an IRB, a medical reason is not required if there is a valid “other” reason. In this case, the reason for the denial was that the respondent thought the incident was not an “accident.” The applicant has not cited any authority that once the threshold determination has been made that there was an “accident,” the respondent cannot defend the denial on other grounds such as a return to work, where the applicant has the burden of demonstrating entitlement.
23The applicant bears the burden of proving his entitlement to an IRB on a balance of probabilities. The applicant did not provide submissions with respect to why he is entitled to an IRB based on the pre-104 or the post-104 test.
24For these reasons, I find that the applicant has not met his onus of establishing on a balance of probabilities that he is entitled to an IRB.
25To receive payment for a treatment and assessment plan under s. 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 them are reasonable.
The applicant is entitled to the plan for occupational therapy services
26The applicant is entitled to the plan for occupational therapy services, if incurred, because the respondent’s denial did not comply with s. 38(8) of the Schedule.
27Section 38(8) of the Schedule provides that the insurer must reply to a plan within 10 business days, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 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 a 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, if the plan was incurred during the period of non-compliance.
28The applicant submits that the respondent denied all the issues in dispute based on its determination that the applicant had not been involved in an “accident” as defined in the Schedule. The applicant relies on the arguments made above in relying on the decisions of Robinson, Smith, Hedley, and Turner. For the reasons set out above, the decisions of Robinson, Smith and Turner do not assist the applicant.
29The respondent submits that the plan in dispute was partially approved in the amount of $1,297.25 on July 11, 2022, and that the denied items were not proper items to claim pursuant to the Schedule.
30In reply, the applicant submits that the respondent denied two hours required for brokerage and three hours required for documentation, however no correspondence explaining the basis of this denial has been provided to date. The applicant submits that the respondent’s denial is improper as no Explanation of Benefits or medical basis for the denial was provided.
31The respondent filed into evidence the OCF-18 indicating that the plan was partially approved, however it did not direct me to a denial letter including medical or other reasons for the partial denial. As such, I find that the Hedley decision applies, and the respondent did not provide a denial compliant with s. 38(8).
32As such, the applicant is entitled to the plan for occupational therapy services, if incurred, pursuant to Aviva General Insurance Company v. Catic, 2022 ONSC 6000.
The applicant is not entitled to the OCF-6 for transportation for insured aid
33The applicant has not established on a balance of probabilities that he is entitled to the OCF-6 for transportation for insured aid.
34The applicant submits that the respondent denied all the issues in dispute based on its determination that the applicant had not been involved in an “accident” as defined in the Schedule. The applicant relies on the arguments made above in relying on the decisions of Robinson, Smith, Hedley, and Turner. For the reasons set out above, the decisions of Robinson, Smith and Turner do not assist the applicant.
35The respondent submits that the invoices appended to the OCF-6 are for expenses related to being employed as a taxicab driver, and not for transportation or aide. It filed with the Tribunal a letter dated October 13, 2022 from the respondent to the applicant, denying payment of the OCF-6. The letter indicates that the invoice included expenses such as weekly dues, insurance and a licence fee for the period of September 9, 2022 to September 15, 2022, and that these services are not covered under the Schedule.
36In his submissions, the applicant refers to the denial letter dated December 22, 2022, and not to the previous denial letter dated October 13, 2022 that addressed the OCF-6. The applicant does not make submissions with respect to why the October 13, 2022 denial letter was not a proper denial in accordance with s. 38(8). Further, the applicant does not make submissions as to how the OCF-6 expenses are reasonable and necessary.
37For these reasons, I find that the applicant has not established on a balance of probabilities that he is entitled to payment of the OCF-6 for transportation for insured aid.
The applicant is not entitled to the plan for other assistive devices
38The applicant has not demonstrated on a balance of probabilities that he is entitled to the plan for other assistive devices.
39The treatment plan for assistive devices was proposed by Nicole Wilkins, occupational therapist. The devices proposed are a large screen flip cell phone, Galaxy ear buds 2 Pro, contactless eye pads, a dimmer smart switch, dimmable smart light bulbs, a video/audio doorbell, a baby video/audio monitor to cell phone, a baby gate, and indirect lamps. The goals of the plan are to reduce eye pain, eye strain and eye fatigue by providing devices such as contactless eye pads/eye mask, dimmable indirect lighting and a large phone screen to allow for magnification of contacts etc. and earbuds to listen to voice-over accessibility features; to return to activities of normal living; to facilitate the applicant’s ability to use a cell phone with large screen and using visual impairment features (voice reading etc.); to ease calling others and to teach the applicant to use its various magnification options; colour blocking to have white print on black background; to facilitate the applicant’s ability to function in his home with more appropriate indirect/dimmable lighting; to see and talk to others at the door/safety screen; to safely provide childcare; and to improve mental well-being.
40The applicant submits that the respondent denied all the issues in dispute based on its determination that the applicant had not been involved in an “accident” as defined in the Schedule. The applicant relies on the arguments made above in relying on the decisions of Robinson, Smith, Hedley, and Turner. For the reasons set out above, the decisions of Robinson, Smith and Turner do not assist the applicant.
41The respondent filed with the Tribunal a letter dated October 6, 2022 to the applicant denying the assistive devices. The letter indicates that the respondent believes that the proposed goods and services are experimental in nature. The letter refers to the applicant’s medical records which indicate that the applicant underwent repair of ruptured globes in his eyes on March 12, 2022, and points out that the applicant’s updated medical records from July 2022 to the date of the letter are missing, which would assist the respondent in determining if the proposed goods are necessary. The letter further indicates that the respondent would be arranging an insurer’s examination to determine whether the goods and services proposed are reasonable and necessary. The respondent submits that no additional medical records were produced by the applicant between the date of its letter and the date that the application was filed. An insurer’s examination was scheduled on December 15, 2022 with an optometrist and on January 17, 2022 with an occupational therapist.
42In reply, the applicant advised that the two insurer’s examinations did not proceed. The applicant further submits that the respondent has not detailed why the assistive devices are experimental. The applicant argues that the devices are not experimental because the applicant’s vision was significantly restricted after the accident and the assistive devices are clearly meant to help compensate for this.
43Although the applicant advises that the scheduled insurer’s examinations did not proceed, neither party provides information in this regard as to why. As such, I have considered whether the respondent’s denial letter dated October 6, 2022 provided medical or other reasons for the denial. I find that the respondent did provide medical reasons as required by s. 38(8) in its denial letter. It referred to the applicant’s medical evidence and advised that it was missing updated medical records to decide whether the proposed devices were necessary.
44In support of his position that the treatment plan is reasonable and necessary, the applicant relies on information provided by Ms. Wilkins in the treatment plan, as well as Ms. Wilkins’ clinical notes and records.
45The treatment plan on its own is not sufficient evidence in support of the assistive devices. There must be compelling contemporaneous evidence in support of the items in the treatment plan. In this case, the applicant does not direct me to evidence to support the reasonableness and necessity of the items in the plan, other than that of Ms. Wilkins, who proposed the treatment plan. The applicant does not provide evidence of any other treatment providers who recommend these devices or who are of the opinion that they are reasonable and necessary as a result of the impairments sustained in the accident.
46For these reasons, I find that the applicant has not established on a balance of probabilities that he is entitled to the plan for other assistive devices.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
48The 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.
49I have considered whether the respondent unreasonably withheld or delayed the payment of the occupational therapy services.
50The applicant submits that the respondent unreasonably withheld this necessary treatment, thereby causing undue hardship. The applicant further submits that the respondent’s refusal to proceed with any other course of action aside from a hearing, while maintaining its denial of the benefit in the interim, has had the impact of unnecessarily delaying treatment and benefits for the applicant, thereby justifying a more substantial award.
51It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the applicant has not directed me to any behavior on the part of the respondent that reaches that high standard. To challenge whether an accident occurred where there is an assault element is a regular threshold dispute between parties at the Tribunal and is not evidence of bad faith. I find that no benefits were unreasonably withheld or delayed and accordingly there is no basis for ordering an award under Reg. 664.
ORDER
52For the reasons above, I find:
i. The applicant is not entitled to an IRB.
ii. The applicant is entitled to the plan for occupational therapy services, if incurred.
iii. The applicant is not entitled to the OCF-6 for transportation for insured aid.
iv. The applicant is not entitled to the plan for other assistive devices.
v. The applicant is not entitled to an award.
vi. The applicant is entitled to interest on any overdue payment of benefits.
Released: March 20, 2025
Laura Goulet Adjudicator