Guest Author: Kristy Hansen, White Macgillivray Lester LLP
Aviva subjected to pay order for unreasonably withheld or delayed payments for having “stubbornly maintained its denial and forced a hearing where it, for the first time post-accident, raised causation issues”.
In this case, the applicant disputed a denied payment toward a new vehicle, submitted by her occupational therapist via an OCF-18.
The following issues were explored:
- Is the applicant entitled to $12,341.56 toward purchase price of new vehicle?
- Is the applicant entitled to interest under s. 51?
- Is the applicant entitled to an award of $1,200 for unreasonably withheld or delayed payments?
The amount in dispute ($12,341.56) reflects the difference between the applicants previous 2016 Volkswagen Jetta and her newly owned 2017 Hyundai Tucson.
The applicant sustained injuries to her left glute and left hip as a result of the subject accident. Her symptoms and pain worsened when driving her 2016 Volkswagen Jetta. The applicant’s occupational therapist submitted an OCF-18 for the cost of upgrading her vehicle to a larger model on the basis that her occupation required a significant amount of driving, and that a larger vehicle would be more comfortable overall.
Aviva denied the expense stating it was not reasonable and necessary. They provided no medical evidence for their finding, nor did they schedule an insurer examination despite indicating they would.
The applicant eventually purchased the 2017 Tucson, despite Aviva’s denial, so that she could continue working.
At the hearing, the applicant submitted evidence of her Occupational Therapist (OT) that the cost of a vehicle upgrade was reasonable and necessary and that both the OT and the applicant had exhausted other, less expensive, attempts to accommodate the applicant’s return to work.
For the first time since the accident, Aviva argued that the applicant’s hip pain was not causally related to the accident. Aviva also argued that the applicant did not demonstrate that she had explored cheaper alternatives.
Adjudicator Jesse A. Boyce rejected all of Aviva’s submissions and found that the applicant met her burden of proof in demonstrating that the benefit was reasonable and necessary. He ordered Aviva to pay the amount in dispute, plus interest.
Adjudicator Boyce also ordered a $1,200.00 award under section 10 of O. Reg 664, finding that the improper denial, failure to schedule an IE, subsequent delay and unyielding position that compounded payment to be unreasonable, unsupported, and worthy of deterrence.
