H. A. v. Aviva General Insurance, 2017 CanLII 56678

Date: 2017-08-01

Tribunal File Number: 16-003279/AABS

Case Name: 16-003279 v Aviva General Insurance

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

H. A.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

PARALEGAL FOR THE APPLICANT: Loreto Scarola

COUNSEL FOR THE RESPONDENT: Michal C. Baura

HEARD: Written Hearing May 15, 2017

REASONS FOR DECISION

Background

1H. A. (the “applicant”) was involved in an automobile accident on December 12, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case settlement conference held on January 12, 2017 failed to fully resolve the issues disputed by the parties. Accordingly, a written hearing was ordered to be conducted in this matter, commencing May 15, 2017.

Issues[^1]

4The substantive issues to be decided by the Tribunal are:

1.1. Is the applicant entitled to payment of a benefit in the amount of $200.00 for the cost of preparing a Treatment and Assessment Plan (OCF-18) for a psychological assessment by the Pilowksy Psychological Professional Corporation (“Pilowsky”) on April 15, 2016, denied by the respondent on July 12, 2016?

1.2. Is the applicant entitled to payment of a benefit in the amount of $200.00 for the cost of preparing a Treatment and Assessment Plan (OCF-18), prepared by Dr. Osama Benmoftah on July 20, 2016, denied by the respondent on September 16, 2016?

1.3. Is the applicant entitled to payment of the HST applied to the fees for:

1.3.1. the above-noted OCF-18s prepared by Pilowsky, in the amount of $26.00?

1.3.2. the above-noted OCF-18 prepared by Dr. Osama Benmoftah in the amount of $26.00?

1.3.3. the psychological assessment by Pilowsky, in the amount of $260.00?

1.3.4. the orthopedic assessment by Dr. Osama Benmoftah dated August 14, 2016, in the amount of $260.00?

Finding: Issue 1.1 and 1.2 – Fee for Completion of OCF-18

5I find that the applicant is entitled to payment for the cost of preparing both above-noted OCF-18s in the amount of $200.00 for each.

Reasons: Issue 1.1 and 1.2 – Fee for Completion of OCF-18

6The respondent approved the assessments recommended by the OCF-18s noted above. It paid the maximum $2,000.00 allowed under s. 25 (5) of the Schedule for each of the assessments.

7An OCF-18 is a Treatment and Assessment Plan that sets out the cause and nature of the applicant’s injuries. It outlines assessments or examinations that a health care provider feels is required for ongoing management of the applicant’s recovery.

8The respondent refused to pay the $200.00 billed by Pilowsky and Dr. Benmoftah respectively for the preparation of the OCF-18s.

9The respondent contends that the cost of OCF-18s is covered by the maximum amount payable under s. 25(5) of the Schedule in respect of fees for assessments. Subsection 25(5) states:

Despite any other provision of this Regulation, an insurer shall not pay […] more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it […]

10The respondent argues that the $2000.00 cap applies to both conducting the assessment and the preparation of the OCF-18 form for that assessment. It asserts that this interpretation precludes it from paying a fee for preparing an OCF-18 in any amount above the s. 25(5) cap.

11The applicant contends that the respondent is liable to pay for the costs of the two OCF-18s as a separate expense over and above the costs of the approved examinations or assessments themselves.

12The applicant points to the Insurance Superintendent’s Guideline No. 03/14, which I am required to consider² in determining how to interpret s. 25(5) of the Schedule. It reads, at pp. 2-3:

The $200 maximum fee referred to in this Guideline and in Superintendent’s Guideline No. 06/10 (July 2010 Professional Services Guideline) for a Treatment and Assessment Plan (OCF-18) applies only to the services of a health practitioner as referred to in subsection 25 (1) 3 of the SABS, namely reviewing and approving an OCF-18 under subsection 38 (3) (c), including any assessment or examination necessary for the purpose of that review and approval by the health practitioner. The $200 maximum fee does not apply to assessments or examinations that are proposed in an OCF-18 and that an insurer agrees to pay for under subsection 38 (8) of the SABS.

13I find that the Superintendent’s Guideline No. 03/14 is clear and requires a reading of the Schedule that:

(i) Subsection 25(5) of the Schedule refers only to the costs associated with actually carrying out the recommendations included in the treatment and assessment plan once approved; and

(ii) The cost of preparing an OCF-18 is a “separate cost” that is payable by the insurer above the $2,000 cap set by s. 25(5) when a treatment and assessment plan has been approved.

14The applicant included in its submission a redacted copy of an Explanation of Benefits (EOB) letter from the respondent insurer to an insured person, dated May 20, 2016, in which it states that the costs of an approved assessment “should not exceed $2,200.00 ($2000.00 for the assessment and $200.00 to fill out the claim form).” It approved and paid the $2,200.00 total.

15The EOB letter indicates that the respondent has in the past followed the Superintendent’s direction on this issue, interpreting this issue in the same way that the applicant does in this case. In this letter it accepts that the fee for OCF-18 preparation is separate from the fees and expenses governed by s. 25(5).

16The respondent did not in its submission challenge the authenticity of the EOB letter, nor did it speak to the implication raised by it. It fails to say why the applicant in this case should be subject to a changed interpretation of the Schedule.

17Taken together, the Superintendent’s Guideline 03/14 and the respondent’s own prior treatment of this issue compel me to find that the fee for preparing an OCF-18 is separate from and payable in addition to the fees and expenses for the actual conduct of an assessment or examination governed by s.25(5).

Reasons: Issue 1.3 – Payment of HST on fee for preparing OCF-18

18The respondent’s argument for denying payment of the HST applied to the OCF-18 and the orthopedic assessment provided by Dr. Benmoftah are the same as it makes for denying the OCF-18 fees above the Schedule’s s. 25(5) cap.

19The applicant cites the Superintendent’s Guideline No. 02/16 on this issue. However, the Superintendent’s Guideline No. 02/16 applies specifically to ss.15-16 of the Schedule, as noted by the respondent.

20I reviewed Superintendent’s Guideline No. 03/14, which has much broader application, including to s. 25 of the Schedule, and at page 3 it states:

If the HST is deemed by the Canada Revenue Agency to be applicable to any of the services of fees listed in this Guideline, then the HST is payable by the insurer in addition to the fees as set out in this Guideline.

I find the Superintendent’s Guideline No. 03/14 to be clear direction that HST is payable by the respondent insurer in this case, and is not covered by the cap on fees and expenses set by s. 25(5) of the Schedule.

Special Award

21The applicant has requested a special award under s.10 of Regulation 664 pursuant to s. 280 of the Insurance Act.

22I find that a special award in this case is not appropriate.

Costs

23The applicant has asked for costs in this matter, citing Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) (“the Rules”), which state:

Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

24I find that a cost award in this case is not appropriate.

Reasons: Special Award and Costs

25The applicant’s request for a special award and costs is based on her contention that the respondent has proceeded to a hearing “knowing that they are in direct violation of the SABS”.

26The applicant cites the above-noted EOB letter from the respondent insurer in which it accepts and approves a payment of $2000.00 for the assessment and $200.00 to fill out the claim form as evidence that the respondent knew the law and chose to flout it in this case.

27I do not find that the denial of a claim based on a party’s interpretation of a regulatory provision, even if it is has changed its views on that interpretation over time, is a “knowing, direct violation” of that regulation.

28Rule 10 states:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to …

29There is simply nothing in the evidence adduced by the applicant to suggest that the respondent was unreasonable or dealing in bad faith, and the respondent’s handling of the applicant’s assessment costs suggests to me that this was not the case.

Summary of Findings

30The applicant’s request for an Order that that she is entitled to the cost of preparing a treatment and assessment plan (OCF-18) in the amount of $200.00 for a psychological assessment by Pilowsky Psychological Professionals Corporation, dated April 15, 2016, is granted.

31The applicant’s request for an Order that she is entitled to the cost of preparing a treatment and assessment plan (OCF-18) for an orthopedic assessment by Dr. Osama Benmoftah, dated July 20, 2016 in the amount of $200.00 is granted.

32I find that the respondent is also required to pay the HST on:

(i) both disputed OCF-18s; and

(ii) on the cost of the assessments themselves.

Footnotes

1. 2see s.268.3(2) of the Insurance Act, RSO 1990, c.I.8.
2. 1I note that my statement of the issues is drawn from the body of the applicant’s submissions. The substantive issues were incorrectly stated on both the second and last page of the submission (“Order Sought”).