Guest Author: Alexandra McCallum, White Macgillivray Lester LLP
Insurer ordered to pay special award for unreasonably held or delayed payment of IRBs after ignoring severity of psychological impairments and reports of its own assessors.
The Applicant was injured in a motor vehicle accident and sought accident benefits from the Insurer, Aviva, pursuant to the Statutory Accident Benefits Schedule. He was denied Income Replacement Benefits and a Treatment Plan for physiotherapy; he subsequently submitted an Application to the Licence Appeal Tribunal for consideration. As a result of the accident, the Applicant sustained a diagnosed concussion and suffered both physical and psychological impairments. The issues to be decided at the written hearing were: whether the Applicant was entitled to IRBs, whether the Applicant was entitled to an OCF-18 Treatment Plan for physiotherapy, whether the Applicant was entitled to interest on overdue benefit payments, and whether the Applicant was entitled to an award for unreasonably withheld or delayed payment of benefits.
At the time of the accident, the Applicant was self-employed as a taxi driver, and also rented out his taxi to other drivers. Following the accident, the Applicant returned to work as a taxi driver on reduced hours and continued to rent out his taxi. Two months after his return to work, the Applicant’s family physician submitted an OCF-3, indicating that the Applicant suffered a substantial inability to perform the essential tasks of his employment and a complete inability to carry on a normal life.
Initially, Aviva paid the Applicant IRBs for approximately 10 months prior to terminating the benefit on the basis of a multidisciplinary assessment report, which found that the Applicant did not suffer a substantial inability to perform the essential tasks of his employment. Aviva also relied on surveillance evidence to ground the denial. Approximately 5 months after the IRB benefit was terminated, the Applicant’s psychologist submitted a further OCF-3 with a diagnosis of major depressive episode and Aviva re-instated his IRB benefit. Aviva arranged a further multidisciplinary assessment and terminated the IRB benefit again 3 months later.
On review of the medical evidence and the various assessor reports, the Tribunal ultimately found that the Applicant suffered both physical and psychological injuries as a result of the accident and that he qualified for IRBs both pre and post-104 weeks. Vice Chair Susan Mather preferred the evidence of the Applicant and gave little weight to either of Aviva’s multidisciplinary assessment reports.
Vice Chair Mather found that the first multidisciplinary assessment report provided evidence that the Applicant suffered psychological impairments as a result of the accident, with Aviva’s own psychologist diagnosing the Applicant with an Adjustment Disorder Mixed Anxiety and Depressed Mood, and an Unspecified Depressive Disorder. Despite this, Vice Chair Mather found that all of the assessors from the first multidisciplinary assessment only considered the Applicant’s physical ability to drive a taxi and failed to consider whether his psychological impairments affected his ability to perform the essential tasks of his employment as a taxi driver, or the other essential tasks of being a taxi cab owner. Further, the surveillance obtained by Aviva simply confirmed that the Applicant was not the only driver of his taxi. Vice Chair Mather found that the surveillance evidence, combined with the Applicant’s revenue allocation, confirmed that most of the Applicant’s income was derived from the rental of his taxi.
In considering the second OCF-3, the Tribunal again preferred the medical evidence of the Applicant to Aviva’s second multidisciplinary assessment report. Vice Chair Mather found that the Insurer’s physiatry assessment did not account for any psychological impairment that the Applicant sustained in the accident; the Insurer’s psychology report was also contrary to the findings of both the first Insurer psychological diagnosis and the Applicant’s own psychological diagnosis, and did not recognize that the Applicant had already been diagnosed with Major Depressive disorder arising from the accident; and the Insurer’s OT functional capacity evaluation contained obvious errors.
Ultimately, Vice Chair Mather found that Aviva ignored the medical evidence of its own assessors, which confirmed that the Applicant suffered from psychological impairments from the accident. She further found that, although the Applicant completed a university degree in computers and mathematics, he had not held any other employment than a taxi driver for 15 years prior to the accident. Further, the Tribunal found that Aviva provided no evidence of suitable employment for a person with the Applicant’s impairments. Vice Chair Mather concluded that the Applicant suffered a complete inability to engage in any employment for which he is reasonably suited on the basis of ongoing psychological impairments and for his requirement for daily medications for his headaches and mood. She further found the Applicant entitled to interest on the IRB amounts payable.
The Tribunal did not find the Applicant’s Treatment Plan for physiotherapy to be reasonable and necessary, as there was no copy of the Treatment Plan in evidence, nor any evidence of the amount and type of physical therapy treatment received prior to submitting the disputed Treatment Plan.
Finally, Vice Chair Mather found that Aviva unreasonably held or delayed payment of IRBs and awarded a lump sum award equivalent to 50% of the Applicant’s IRB entitlement, along with interest, pursuant to section 10 of Ontario Regulation 664. Vice Chair Mather relied on the LAT reconsideration decision in F.P. v. Pilot Insurance Company, which found that “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…it entails an assessment whether the insurer exceeded the limits of what is reasonable” (para 90). Vice Chair Mather found that the Applicant’s IRBs were unreasonably denied because, in adjusting the claim, Aviva failed to give recognition to the fact that the Applicant suffered psychological impairments, despite its own assessor diagnoses, and Aviva also failed to recognize the severity of the psychological impairment, despite comments from its own assessors and despite approving psychotherapy treatment.
