Citation and Parties

Citation: Matadin v. Aviva Insurance Company of Canada, 2025 CanLII 99921

Licence Appeal Tribunal File Number: 23-010326/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:

Kaitlin Matadin A Minor by their litigation guardian Charmaine David

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jonathon Dick

APPEARANCES:

For the Applicant: Yalda Aslamzada, Counsel

For the Respondent: Joanne R. Witt, Counsel Justin Chan, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Kaitlin Matadin, the applicant (a minor represented by her litigation guardian, Charmain David), was involved in an automobile accident on September 4, 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 Insurance Company of 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 $3,445.28 for physical medical services, proposed by Canadian Active Rehab Centre in a treatment plan dated October 11, 2022 ("Treatment Plan 1")?

ii. Is the applicant entitled to $5,036.90 for oculo-visual services, proposed by Canadian Active Rehab Centre in a treatment plan dated October 12, 2022 ("Treatment Plan 2")?

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

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

RESULT

3The applicant is not entitled to the two treatment plans.

4The respondent is not liable to pay an award under s.10 of Reg. 664.

5No interest is payable.

ANALYSIS

6The applicant claims that the respondent failed to comply with the notice provisions of the Schedule in respect of both treatment plans, and submits that, as a result, the respondent must pay the treatment plans in full. The applicant's written submissions do not address the reasonableness and necessity of the denied benefits.

7The respondent submits that its notices of denial were not deficient and, in the event any were deficient, the applicant does not qualify for any payment pursuant to the Schedule.

8Section 38(8) of the Schedule sets out strict notice requirements for insurers responding to treatment plans. Section 44(5) details the requirements an insurer must meet to issue a compliant notice of insurer's examination ("IE"). Further, s.38(11) provides consequences for not complying with s.38(8). There is no specific statutory consequence for failing to comply with s.44(5).

9I find that the applicant is not entitled to payment for the physical medical services proposed in Treatment Plan 1.

10Although the respondent did not provide a proper initial notice of denial, in contravention of s.38(8) of the Schedule, it did provide a subsequent notice of denial, which satisfied this provision. The initial non-compliance triggered the "shall pay" provision of s.38(11)2. However, as a condition of the "shall pay" provision, the applicant must have incurred an expense in respect of the treatment plan during the specific period between the 11th business day following receipt of the OCF-18 and the compliant notice, which she did not. Therefore, the respondent is not liable to pay the applicant any amount, pursuant to s.38(11)2.

Analysis of s.38(8)

11Section 38(8) requires an insurer to inform an insured person, within 10 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 as "the medical reasons and all of the other reasons" why it considers any of the goods and services not to be reasonable and necessary.

12The applicant submits that the respondent's denial, dated November 4, 2022, did not provide specific details regarding the applicant's medical condition.

13The respondent submits that its notices were not deficient. The respondent's initial notice of denial stated that it was unable to determine whether the recommendations on the applicant's OCF-18 were reasonable and necessary for the injuries sustained, and that it was unable to pay the applicant's benefits at that time. The notice goes on to state under the heading "medical reason": "The frequency of care does not diminish over time. The patient does not appear to show objective signs of improvement despite continuing treatment. The patient's subjective physical complaints appear to remain unchanged despite continuing treatment."

14In M.F.Z. v. Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) ("Aviva"), Executive Chair Lamoureux stated that reasons for denial, such as "the frequency of care does not diminish over time," are "meaningless" and are not reasons at all. She stated further that the requirement is to provide a medical reason, not leave the applicant to guess what the reason is. I agree.

15The insurer needs to provide details of the insurer's condition in support of its denial. I find that the respondent did provide specific medical reasons for its denial.

16The OCF-18, prepared by Nikita Lakhani, physiotherapist, claims in Part 6 that the applicant suffers from complaints, injuries and sequelae as a direct result of the accident, including whiplash, post-concussion syndrome and 17 other specifically named conditions. In addition, the form sets out the goals of treatment and how progress will be evaluated. The denial, however, does not address the specific details about the insured's condition, and it does not meet the test in s.38(8) as a result.

17I agree with the applicant that the initial notice of denial did not provide "medical reasons" for denial, as required by s.38(8). It is unclear what the medical or all the other reasons are of "the frequency of care does not diminish over time", and I agree that this statement would not be clear to the applicant. Further, I find there are no meaningful or specific details about her condition or injuries to explain the initial denial of the OCF-18 in accordance with s.38(8).

18On November 20, 2023, after the applicant had attended an IE with Dr. Jugnundun, family physician, the respondent issued a subsequent denial notice. This denial quoted Dr. Jugnundan's report, stating that the applicant did not sustain the impairment as defined in the OCF-18. The report stated further, "the applicant has been appropriately treated and adequately investigated, with no suspicion of any undiagnosed sinister medical issues. She is at maximum medical improvement, and the items claimed in the treatment plan are not reasonable and necessary."

19The applicant does not specifically refer to or refute the validity of this second notice of denial. Instead, the applicant submits that she is uncertain if, in fact, she attended an IE. According to Dr. Jugnundan's the report referred to in the above paragraph, the applicant attended an IE on November 13, 2023, was examined in person, and her identity was verified by way of her health card.

20The applicant submits that the notice to attend the IE does not meet requirements of s.44(5), and that the examination and subsequent report are invalid as a result. I will address the arguments concerning s.44(5) below.

21The respondent submits that both of its notices of denial comply with s.38(8).

22I find that the subsequent denial notice satisfies s.38(8). It quotes the IE report of Dr. Jugnundan and provides clear medical and other reasons, for the denial. The notices states that: the applicant did not sustain the claimed impairment; she sustained soft tissue injuries; she is healthy and fit; she has been in appropriate treatment; there was no suspicion of any undiagnosed medical issues; and specific devices would not be of any benefit.

Analysis of s.38(11)2

23The initial denial's breach of s.38(8) triggers the "shall pay" operation of s.38(11)2, which states that:

... 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).

24The insurer received the OCF-18 on October 11, 2022. The 11th business day after that date was October 26, 2022, being the start date of the period considered in s.38(11)2. This period ended on November 28, 2023, as this is the date on which the respondent delivered a valid notice of denial to the applicant.

25The respondent states that, for s.38(11)2 to come into effect, there must be an accompanying expense of invoice issued to the applicant during the period in question. The respondent relies on the Divisional Court's ruling in Aviva General Insurance Company v. Catic, 2022 ONSC 6000 ("Catic") in support of its position. The Court in Catic decided that there must be an accompanying expense or invoice issued during the period in question in order to qualify for payment from the insurer. The respondent states that no expense was incurred during the period, and the applicant has not provided any evidence to the contrary.

26In reply, the applicant submits that the Catic decision contains "several errors in fact, logic and interpretation", but that a fulsome consideration "falls outside of this Reply." The applicant submits further that the Divisional Court in Zheng v. Aviva Insurance Company of Canada, 2018 ONSC 5707 ("Zheng") arrives at a different conclusion than Catic, and that the Tribunal must choose which case to apply to these facts. According to the applicant, it should apply Zheng.

27I disagree with the applicant. The Catic and Zheng decisions are not at odds with each other. In Zheng, the Divisional Court found that none of the insurer's denial notices complied with s.38(8) and s.38(9). In Catic, the Divisional Court found that an insurer's subsequent notice of denial did comply with s.38(8). In the case before me, I also find that the insurer's second notice of denial complied with s.38(8), and I have therefore applied Catic.

28In Catic, as in this case, the applicant did not provide an invoice or incur an expense in respect of the treatment plan within the time period set out in s.38(11)2 of the Schedule. Further, Catic states that, while consumer protection is the spirit of the legislation, it should not result in a consumer windfall. A requirement to pay for non-incurred goods and services may result in payment for items that the applicant elects not to receive.

29Therefore, without evidence that any amount was incurred during the relevant period, I find that the applicant is not entitled to payment on Treatment Plan 1, pursuant to s.38(11)2.

Analysis of s.44(5)

30Section 44(5) of the Schedule requires an insurer seeking to compel an insured person to attend an IE to provide "the medical and any other reasons for the examination". There is no specific remedy in the Schedule associated with a breach of s.44(5), and there is no explicit connection between s.38(8) and s.44(5). The applicant submits that the respondent's notice to attend an IE, in its initial notice of denial, dated November 4, 2022, did not comply with the requirements of s.44(5). She submits further that the notice of denial issued subsequent to the IE is void, ab initio. As such, the respondent should not be allowed to rely on the IE report's contents in support of its denial of the treatment plan.

31Specifically, the applicant submits that the s.44(5) notice is inadequate, stating that there are "limited non-specific explanations", and, as a result, "the IE's were improperly procured." The respondent submits that the IE was necessary to determine if the applicant is entitled to the benefits applied for. The respondent submits further that several documents, including clinical notes and records, were not provided by the applicant, even though such productions were properly requested or part of the Case Conference Report and Order.

32The respondent submits that it provided medical and other reasons in its letter, dated November 4, 2022, stating that the applicant does appear to show objective signs of improvement despite continuing treatment. The applicant's physical complaints appear to remain unchanged, and it wanted to determine if the proposed goods and services are reasonable and necessary to address her claims.

33I find that the notice to attend the IE was insufficient, as it did not provide sufficient "medical and all of the other reasons for the examination." My finding would affect the report's weight in determining if the treatment plan is reasonably and necessary. The applicant submits the report should be dismissed ab initio, and deny its use in the subsequent notice of denial. There is nothing in the Schedule that stops the respondent from relying on the IE report in its denial.

34Although the respondent did not give proper notice of its requirement for the applicant to attend an IE, in contravention of s.44(5) of the Schedule, the applicant attended the examination without protest. An examination was conducted, and a report was issued and relied upon by the respondent in its reasons for denial. Even if this s.44(5) notice was deficient, it would go to the weight of the report in determining whether the treatment plan was reasonable and necessary.

35The applicant has not provided any submissions or pointed me to any evidence that the treatment plan is reasonable and necessary. As a result, I find the applicant has not satisfied their onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary

36The applicant is not entitled to payment for the oculo-visual services in Treatment Plan 2.

37The applicant again submits that the initial denial notice for this plan does not satisfy the requirement of s.38(8). I agree. The respondent's rationale in its initial notice of denial, dated October 25, 2022, only stated that it was unable to determine whether the recommendations in the OCF-18 were reasonable and necessary for the injuries sustained by the applicant. It then requested that the applicant attend an IE with Dr. Breslin, Ophthalmologist. In contravention of s.38(8), the denial did not provide "medical and all of the other reasons" to explain why the respondent considers the treatment plan not to be reasonable and necessary.

38However, like in its response to Treatment Plan 1, the respondent provided a sufficient notice subsequent to the IE that satisfied the requirements of s.38(8). I find that the subsequent notice stated the required "medical and all other reasons." Specifically, in its subsequent notice of denial, dated September 18, 2023, the respondent stated that the IE examination report of September 14, 2023 determined the applicant "did not sustain an oculovisual impairment as a direct result of the motor vehicle accident. The assessor advised that other than mild-moderate dry eye disease and mild light sensitivity, not related to the accident, the examination was normal.". I find that the subsequent notice provided sufficient and clear medical reasons why the respondent considers the treatment plan not to be reasonable and necessary.

39The failure of the initial notice triggered the "shall pay" provisions in s.38(11)2, which requires the respondent to pay for the incurred expenses from the 11th business day after submission of the OCF-18 to the date of the valid denial. However, the applicant did not provide submissions or direct me to evidence that she incurred any expenses in this period in respect of this treatment plan. As such, she is not entitled to any payment related to this treatment plan, as per Catic.

40I find that the notice to attend the IE was also insufficient, as it did not provide sufficient medical and any other reasons. However, again, the applicant has not provided submissions on whether the treatment plan is reasonable and necessary. It has asked the Tribunal to dismiss the report's use in the subsequent notice of denial. For reasons similar to those detailed above, there is nothing in the Schedule that stops the respondent from relying on the IE report in its denial.

41As a result of the above, I find that the applicant has not satisfied her onus on a balance of probabilities and is not entitled to a payment for Treatment Plan 2.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that there is no payment of benefits owing, no interest is payable.

Award

43The applicant sought an award under s. 10 of Reg. 664 equivalent to 50% of the value of the denied OCF-18s, which is the maximum allowable

44For an award to be payable pursuant to O. Reg 664, an insured must demonstrate that an insurer has engaged in behaviour which was excessive, imprudent, stubborn, unyielding or immoderate, in withholding or delaying payments.

45The applicant submits that she is entitled to the award because of the respondent's misconduct. Specifically, the applicant submits that the respondent's notices were deficient; that the IEs were inherently intrusive; and that the respondent failed to provide sound and principled denials in contravention of s. 38.(8).

46I have not been persuaded that any of the benefits were unreasonably withheld or delayed due to any excessive, imprudent, stubborn, unyielding or immoderate behaviour on the part of the respondent. Therefore, the applicant is not entitled to an award.

ORDER

47For the reasons set out above, I find:

i. The applicant is not entitled to the two treatment plans;

ii. No interest is payable;

iii. The respondent is not liable to pay an award under s.10 of Reg. 664; and

iv. The application is dismissed.