January 15, 2021, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
K.K. vs. Aviva General Insurance, 2020 ONLAT 18-012611/AABS
Date Of Decision: October 13, 2020
Heard Before: Vice Chair Susan Mather
UNREASONABLY WITHHELD OR DELAYED PAYMENT: Insurer ignores own assessors’ diagnosis; Insurer’s assessments contradict each other; Insurer fails to pay benefits required; Insurer required to pay past due interest and a lump sum ward to Applicant; O. Reg. 664
The 53 year old applicant was a taxi driver involved in an automobile accident. He sought IRBs and medical benefits pursuant to the SABs on the basis of physical and psychological injuries. Aviva initially paid benefits but after 10 months his claim was denied by Aviva.
The Applicant was self employed at the time of the accident and rented out his taxi to other drivers. After the accident, the Applicant returned to work part time and continued to rent out his cab. Two months after returning to work he attended his family doctor who submitted an OCF-3 on his behalf indicating a substantial inability to perform the essential tasks of his employment and a complete inability to carry on with a normal life.
Benefits were collected by the Applicant for 10 months at which point Aviva terminated the benefits on the basis of a multidisciplinary assessment report which found the Applicant did not suffer a substantial inability to perform the essential tasks of his employment. Aviva relied on surveillance evidence as well to support their denial of the claim.
Five months after the termination of benefits the Applicant submitted another OCF-3 which reported a diagnosis of a major depressive episode resulting from the car accident. At this time Aviva reinstated the IRBs and arranged another multidisciplinary assessment. Three months later Aviva once again terminated the Applicant’s IRB.
Vice Chair Mather reviewed the medical evidence and the various other assessment reports provided by the Applicant and Aviva and found that the Applicant did indeed suffer from physical and psychological injuries. As a result of the injuries, he qualified for IRBs pre and post 104 weeks. Vice Chair Mather noted that she gave little weight to the reports prepared on behalf of Aviva and preferred the Applicant’s evidence.
Vice Chair Mather noted the first multidisciplinary assessment report determined that the Applicant suffered psychological impairments resulting from the accidents. She noted that the psychologist preparing the report for Aviva diagnosed the Applicant with Depressed Mood, an Unspecified Depressive disorder and Adjustment Disorder Mixed Anxiety. Notwithstanding the diagnosis, the Vice Chair noted that the multidisciplinary assessors failed to consider the impact of these psychological impairments on the Applicant’s ability to drive a taxi and perform the essential duties of his job. The assessors focussed only on the physical impairments of the Applicant.
The Vice Chair also noted that Aviva’s surveillance evidence only confirmed that the Applicant was not the sole operator of his cab and that he did indeed rent it to other drivers. The Vice Chair noted that the surveillance evidence combined with the financial information provided in fact proved the applicant received most of his income from renting his cab, not driving it himself.
The Tribunal’s review of the second OCF-3 concluded that it was preferred over the second multidisciplinary report prepared on behalf of Aviva. The Vice Chair noted that Aviva’s physiatry assessment did in no way account for psychological impairments sustained in the accident. The second Aviva assessment also contradicted their first psychology report and diagnosis completed as well as the applicant’s own psychological diagnosis. It failed to recognize the existing diagnosis of Major Depressive disorder arising from the car accident. There were also obvious errors in Aviva’s OT functional capacity evaluation.
Vice Chair Mather ultimately concluded that Aviva ignored its own medical evidence from the first assessment reports and the assessors’ diagnoses. The first report confirmed that the applicant suffered psychological impairments resulting from the car accident. Vice Chair Mather also determined that the Applicant who holds a university degree in mathematics and computers had been working for the last 15 years solely driving cabs. Aviva failed to show that the Applicant was suitably qualified to work at any other job with his impairments.
On the basis of the evidence Vice Chair Mather ruled that the Applicant did suffer a complete inability to engage in any employment that he is reasonably suited to due to ongoing psychological impairments, medication regimen, and mood and headaches. As a result, she found that the Applicant is entitled to interest on the IRBs payable.
The Appealed Aviva’s refusal of his physiotherapy treatment plan. The tribunal ruled that the treatment plan was not reasonable and necessary. The treatment plan was not entered into evidence and there was no evidence provided of the history of physiotherapy treatment received prior to any treatment plans being submitted to the Insurer.
On the basis of the evidence and the above information Vice Chair Mather determined that Aviva unreasonably delayed or held the payment of IRBs to the Applicant. She awarded a lump sum award equal to 50% of the IRB entitlement along with the interest pursuant to Ontario Regulation 644 Sec. 10.
Vice Chair Mather relied on a LAT reconsideration decision F.P. v. Pilot Insurance Company in her decision. She noted in particular that “Executive Chair Linda Lamoureux found the determination of whether benefits have been unreasonably withheld requires looking beyond the reasonableness of the insured’s conduct in seeking benefits, whether the adjudicator agrees with the insurer’s conduct or even whether the adjudicator finds the insurer’s decision to be wrong. Rather, she found it entails an assessment whether the insurer exceeds the limits of what is reasonable. In Pilot, the Executive Chair found the adjudicator did not address the issue of whether the insurer’s conduct in withholding the benefits was unreasonable.”.