The reconsideration found in 17-006781 v Aviva highlights important information for insurers regarding the nature of notice language, and when treatment plans would be considered reasonable or necessary if OHIP coverage is available.

Among the issues in consideration at first instance were two treatment plans where the Applicant argued no denial letters were sent, rendering their benefits payable. Adjudicator Norris at first instance found Aviva did send two denial letters, which noted the plans were not approved “at this time”. An orthopedic IE pursuant to section 44(1) of the SABS was requested in one of the denial letters. Upon first adjudication, Adjudicator Norris found the wording of this denial was not clear and unequivocal. Consequently, he ruled that Aviva owed the costs of the orthopedic assessment to the Applicant.  

Upun reconsideration,  Vice Chair Mather confirmed that the SABS “provides that the notice under section 38(8) may include a notice that the insured person is required to undergo an examination under section 44 confirms that notices under section 38(8) do not have to be clear and unequivocal”. This is confirmed by developing LAT case law.[1]  Therefore, notice sent to insureds under section 38(8) need not comply with clear and unequivocal notice per the SABS and LAT case law. Section 38(11)2 was found not to have been triggered by the notice letter that was sent by Aviva.

The contents of the notice letters were further analyzed, offering insight into what could be considered ‘clear and unequivocal’, finding it need not be as strict as found at first instance. Vice Chair Mather established that Aviva’s letter,

“lists the medical reasons as there was no compelling evidence to indicate that the assessments requested were reasonable. The letter also provided the reason that the applicant had returned to work since the accident. The letter notified the applicant that he was required to attend an IE to determine if the treatment plan was reasonable and necessary.”

These considerations where enough for Vice Chair Mather to overturn the previous ruling that Aviva had not provided  a clear and unequivocal denial of the treatment plan. The Applicant did not address whether the denial adhered to section 38(8). As a guiding principle, these details should be provided in notice documentation in order to establish why the IE is required.

Finally, it was considered whether OHIP coverage available for the orthopedic assessment precluded recovery of the assessment costs that were incurred by the Applicant. Based on the Automobile Insurance Standard Invoice, an insurer must look at the services being sought to determine if they are covered through OHIP. Despite the Applicant’s claim that an orthopedic assessment he required was not available through OHIP, the mention of a referral by his family physician to an orthopedic surgeon refuted that point. The LAT overturned the previous ruling and found that the Applicant’s assessment was therefore not reasonable or necessary.

The timing of the referral by the Applicant’s physician was not a factor in determining whether the assessment was reasonable or necessary. The mere fact that it was available through OHIP was enough to demonstrate that it was not a reasonable or necessary expense than an insurer is required to reimburse.

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222

[1] 16-003510 v. Intact Insurance Company, 2017 CanLII 76933 (ON LAT)