Aviva beat a claimant's bid for deemed accident benefits, but a denial notice that mislabelled a neurological assessment as an MRI cost it one plan.
A driver injured in a May 3, 2023 automobile accident applied for statutory accident benefits and, after Aviva Insurance Company of Canada denied several claims, took the dispute to Ontario's Licence Appeal Tribunal.
The centrepiece was the claimant's push for a non-earner benefit of $185.00 per week from June 6, 2023 to May 3, 2025. Rather than argue he met the test, the applicant relied on a procedural theory - that Aviva had failed to respond within the Schedule's timelines and was therefore deemed to owe the benefit under section 36(6).
The adjudicator rejected that argument. A completed application form indicated the claimant was employed and that his injuries did not prevent him from working, while a later disability certificate indicated he could not carry on a normal life. Read together, the forms pointed to two possible benefits - income replacement and non-earner - which triggered Aviva's duty to request an election under section 35. Aviva asked the claimant to choose using an election form. He refused, asserting no election was required.
Because a valid election was never made, the adjudicator found the application for a specified benefit remained incomplete, Aviva's obligation to pay or deny under section 36(4) was never triggered, and the deemed-payment consequence under section 36(6) did not arise.
Aviva did not escape the decision unscathed. On one treatment plan submitted September 13, 2024 proposing a $2,200.00 neurological assessment, the adjudicator found the insurer's denial notice fell short. The notice described the proposed service as an MRI rather than a neurological assessment and cited an incorrect receipt date. Later correspondence, including a further examination notice and a subsequent denial, continued to address the wrong service or failed to engage the neurological question. The adjudicator held the notice "did not clearly and unequivocally address the goods and services proposed in the plan," and ruled the plan payable under section 38(11), once incurred.
The claimant fared less well on his other claims. A separate plan proposing a $2,200.00 neurological assessment failed because he made no submissions on it and it was not in evidence. A $2,098.64 physiotherapy plan and a $1,563.72 shockwave therapy plan were both found not reasonable and necessary, with the adjudicator satisfied the insurer's denials set out sufficient medical reasons.
The claimant also sought an award of up to 50 per cent of benefits payable under section 10 of Regulation 664 for unreasonably withheld or delayed payments. Because he led no evidence and made no submissions on the point, the adjudicator declined to make an award. He remains entitled to interest on any overdue benefits under section 51.
For claims professionals, the decision underscores that a denial notice must accurately identify and address the specific goods and services proposed. Mislabelling an assessment, even where the underlying medical picture overlaps, can expose an insurer to the Schedule's mandatory payment provision, regardless of how strong its position on the merits may be.
