No ‘Boiler Plate’ Responses Accepted in Insurer Denials - Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318

January 15, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318

Date of Decision: September 23, 2019
Heard Before: Ryan Bell, J.

TREATMENT AND ASSESSMENT PLANS: requests for IE; detailed reasons for refusal of claim must be made within 10 days; no boiler plate response; insurer must indicate why requested treatment does not match medical need/condition/requirements

Mr. Hedley was injured in a car accident in March 2014. He sustained lower back injuries and applied to Aviva pursuant to the SABs for benefits. Aviva approved chiropractic and functional abilities assessment. As a result of the assessment and OT submitted a treatment and assessment plan which recommended assistive devices. Aviva responded withing 10 days that it was “unable to determine whether the recommendations are reasonably required for the injuries you received in the motor vehicle accident’ and advised it scheduled an IE. In the box labelled “Medical Reason” Aviva wrote “The ypes9s0 of treatment does not appear consistent with patient diagnosis”. Aviva refused to clarify its reasons repeatedly.

Mr. Hedley refused to attend the IE on the basis that he had no information provided to him about the basis of his denial of benefits. He appealed to the LAT and the adjudicator ruled in favour of Aviva. On reconsideration, Executive Chair Lamoureux cancelled the Tribunal’s decision on the basis that there was a ‘significant error of law’. The Adjudicator found that Aviva’s reasons were sparse and raised questions about what basis they made their decisions on. Specifically the inconsistency between the information and the recommended treatment.

The Executive Chair found that the benefits and assistive devices were consistent with the medical diagnosis and complaints and that allowing an insurer to justify a denial of any plan by indicating it reviewed the plan in light of the medical documentation on file, and then asserting that the plan is inappropriate given the insured’s condition would run counter to the SABs’ consumer protection objective.

Aviva appealed this decision to Divisional Court where the appeal was dismissed in a unanimous decision. The Divisional Court cited the Ontario Court of Appeal decision in Turner v. State Farm [2005 CarswellOnt 381] which makes it clear that in cases where reasons are required they must be meaningful enough to allow insureds to decide whether to challenge the determination. ‘Boiler Plate” responses do not provide any principled rationale which may be used by an insured to respond. On this basis the decision of Executive Chair Lamoureux is reasonable and should stand.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.