Pereira v. Aviva (2022 ONSC 688)

The claimant appealed the Tribunal’s decision that he was not entitled to certain medical benefits because services were incurred prior to submission of a treatment plan, and that he could not add new claims for NEBs and a special award in his written submissions. The Divisional Court dismissed the appeal in its entirety. First, the Court held that the LAT was entitled to govern its own procedure, and there was no issue of law raised in the Tribunal’s refusal to allow additional issues in the original hearing. The claimant was free to commence a new LAT application for the new issues. Second, the Tribunal did not err in its application of section 38(2) which required the submission of a treatment plan prior to incurring a medical benefit. Further, the application of section 38(2) to the claim was one of mixed fact and law, which the Court did not have jurisdiction to interfere with.

Morris v. Aviva General Insurance (19-002717)

The insurer filed a request for reconsideration after the Tribunal previously decided that, among other things, the claimant was entitled to two OCF-18s, plus interest as a result of the insurer’s failure to comply with section 38 of the SABS. The insurer argued that the Tribunal had referred to case law not submitted by either party, denied the insurer the right to issue a proper denial notice, and misapplied section 38(11). On reconsideration, Adjudicator Lake noted that, while case law that was not submitted by either party was cited (MFZ v. Aviva), it was in terms of comparison towards the purpose of statutory interpretation. In relation to the allegation that the previous decision denied the insurer the opportunity to issue compliant denial notices, Adjudicator Lake noted that the insurer’s position fell afoul of the SABS consumer protection mandate and that it was unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would strip the Tribunal of its jurisdiction to resolve accident benefit matters. Lastly, Adjudicator Lake addressed the insurer’s position that she erred in misapplying section 38. Adjudicator Lake noted that in her previous decision she was silent on whether the OCF-18s were required to be incurred prior to payment. While her silence on the issue did not amount to an error of law, Adjudicator Lake conceded that she should have been clearer regarding the interpretation of section 38 in that the OCF-18s were to be paid within 30 days of an invoice being submitted. Adjudicator Lake granted the request for reconsideration in part, finding that the claimant was entitled to the OCF-18s plus interest following submission of an invoice for services rendered.

Aviva Insurance Company of Canada v. Suarez (2021 ONSC 6200)

The insurer appealed the Tribunal’s decision awarding four treatment plans for chiropractic therapy, two as reasonable and necessary, and two others due to non-compliant section 38 notices. The insurer argued that because the claimant had not received the treatment, she was not permitted to apply to the LAT. The Court rejected the insurer’s position, holding that the claimant did not have to receive treatment prior to disputing her entitlement. The Court agreed, however, that payment for the treatment plans was not required until the claimant incurred the treatment. The Court also preserved the insurer’s ability to dispute payment upon receipt of invoices and incurred expenses, and held that interest was only payable once the treatment was incurred.

P.M. v. Aviva General Insurance (19-002717)

The insurer requested reconsideration of a decision that awarded the claimant two treatment plans as a result of the insurer’s non-compliance with sections 38(8) and 38(9). The insurer submitted that the Adjudicator erred in law by vitiating its right to “cure” its deficient notices regarding the treatment plans submitted under section 38(11) even after the Tribunal rendered a decision. The insurer argued that its liability for payment of goods and services under a treatment plan as a result of its failure to comply with sections 38(8) and 38(9) ends upon delivery of a compliant denial notice pursuant to section 38(11), and not as a result of a decision of the Tribunal. Adjudicator Lake disagreed and stated that it was well settled that the Schedule must be read generously with any limitations construed narrowly. In this context, Adjudicator Lake considered it unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator Lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would also strip the Tribunal of its jurisdiction to resolve accident benefit matters. As a result, Adjudicator Lake found no error of law in finding that the insurer’s opportunity to cure its defective denial notices ended upon the issuance of the decision.

Catic v. Aviva General Insurance (19-005572)

The claimant requested reconsideration of a decision in which the Tribunal found that the claimant was not entitled to the cost of a psychological assessment because it was not reasonable and necessary, despite the insurer’s denial not complying with section 38. The claimant argued that the applicable consequences set out in section 38(11) required the insurer to pay for all assessments and examinations described in the treatment plan starting on the 11th business day and ending on the day the insurer gives a notice described in section 38(8). Further, the claimant argued that evidence of services being incurred was not required, as stated in P.M. v. Aviva General Insurance, where the adjudicator held that s. 38(11)2 does not include a requirement for any services to be “incurred.” The section only states “that relate to.” Adjudicator Grant set aside the Tribunal’s decision and held that the claimant was entitled to the disputed psychological assessment even though it had not been incurred prior to the insurer delivering a section 38 compliant denial.

Kyrylenko v. Aviva Insurance Canada (2021 ONSC 4929)

The claimant appealed the Tribunal’s decision that he was not entitled to payment for benefits related to two treatment plans that the insurer had failed to respond to within 10 business days. Despite the language of section 38(11), the Tribunal considered whether the medical benefits were reasonable and necessary, and whether the MIG applied and barred entitlement to the claimed in-home assessment. The Divisional Court granted the appeal and held that the insurer was liable for all amounts on the treatment plans related to the 11th business day onwards until the treatment plan was properly denied. The Tribunal erred in considering the “”reasonable and necessary”” test for the entitlement when section 38(11) applied, and the Tribunal erred in considering the prohibition on in-home assessments under section 25(2) for MIG claims, given that section 38(11) required payment. The Court ordered the insurer to pay the treatment amounts that relate to the period after the 11th business day following submission of the treatment plan. The Court returned to matter to the Tribunal for a decision on the claim for a special award.

Ali v. Aviva Insurance Company of Canada (19-013677S)

The claimant submitted that the insurer failed to comply with its obligations under section 38(8) regarding its notices that denied the disputed treatment plans. Adjudicator Lake found that the insurer’s response letter failed to provide any specific details about the claimant’s condition that formed the basis of its decision, and failed to provide an explanation for why the insurer concluded that the treatment plan was not reasonable and necessary. Adjudicator Lake stated that simply attaching an IE report to an Explanation of Benefits letter with a bare statement that the treatment plan was not reasonable and necessary was not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue and certainly does not serve the Schedule’s consumer protection goal.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant filed a request for reconsideration arising out of Adjudicator Neilson’s decision that he was not entitled to IRBs or the cost of a psychological treatment plan. Adjudicator Neilson dismissed the request. At the initial hearing, the claimant brought a motion to exclude the insurer’s experts’ reports on the basis that the insurer failed to comply with an order to produce the clinical notes and records of its IE experts, in particular the raw test data from the IE psychologist. Adjudicator Neilson had dismissed the motion on the basis that the insurer had provided proof of best efforts to obtain these records. Then, the claimant sought an adjournment so that the IE psychologist could produce the data to the claimant’s treating psychologist. Adjudicator Neilson dismissed that adjournment request, but the hearing was adjourned for other reasons. At the hearing, the claimant’s treating psychologist testified that she did not interpret the raw data as did not pay the fee to obtain this data through a computer program. Ultimately, Adjudicator Neilson agreed with the IE psychologist and on reconsideration, found that the raw data results would not have changed her opinion with respect to the IRB dispute or entitlement to the disputed psychological treatment plan.

Liao v. Aviva General Insurance (19-004856)

The claimant applied to the LAT seeking entitlement to IRBs and a treatment plan proposing chiropractic treatment. The claimant submitted that she attempted to return to work after the April 2016 accident but ceased working in August 2016 due to accident-related impairments. The insurer argued that the claimant was not entitled to IRBs because she did not comply with requests for documents to complete her IRB application and calculation until November 2019, and therefore she was not entitled to IRBs prior to November 2019. Alternatively, the insurer argued that the claimant had not shown that she satisfied the test for pre- or post-104 IRBs. Adjudicator Chakravarti found that the insurer provided proper (although late) s. 33 requests in December 2016 following receipt of the OCF-3 and the insurer was able to rely on the s. 33(6) consequences for the claimant’s non-compliance with s. 33 requests. The claimant did not produce requested income information until January 2018 and did not produce the requested OCF-2 until November 2019. Adjudicator Chakravarti found that the claimant did not provide a reasonable explanation for the delay in providing the requested documentation and the insurer was entitled to withhold payment of IRBs for the period of non-compliance. Adjudicator Chakravarti found that the insurer’s s. 33 request was made more than 10 days after receipt of the OCF-3 (contrary to the requirements in s. 36(4)) and IRBs would therefore be payable for the period from receipt of the OCF-3 until the s. 33 request was made if the claimant met the substantial inability test for pre-104 week IRBs during this period. Adjudicator Chakravarti found that the claimant failed to prove that she met the test for pre- or post-104 IRBs and was not entitled to IRBs for any period before the s. 33 requests were made or after the s. 33 requests were complied with. The claimant also failed to meet her onus of demonstrating that the proposed chiropractic treatment was reasonable and necessary. The application was dismissed in its entirety.

Kane v. Aviva Insurance Company (20-006995)

The insurer partially approved a treatment plan for psychological treatment because the recommendation was made by a psychotherapist, who was an unregulated provider under the Professional Services Guideline, and therefore was subject to the hourly rate of $99.75 as opposed to the $149.61 per hour rate claimed. Adjudicator Boyce found that the claimant was not entitled to the remainder of the treatment plan as the proposed rate was outside of the hourly fee provided by the Guideline. The Guideline provides that, for non-catastrophic impairments, the maximum hourly rate for psychologists and psychological associates is higher than that for psychometrists and counsellors (being family, rehabilitation, vocational). For services provided by health care professionals, unregulated providers and other occupations not listed in the Guideline, the amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. Adjudicator Boyce agreed with the insurer that the individual’s CV in question confirmed that his practice was as a psychotherapist or psychometrist, which is not listed in the Guideline. Further, there was no evidence that the individual possessed specialized training. As a result, Adjudicator Boyce determined that the claimant had not provided support for the contention that they were entitled to the balance of the treatment plan.