Licence Appeal Tribunal
Tribunal File Number: 17-000897/AABS
Case Name: 16-000897 v Unifund Assurance Company
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:
E. K.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Bruce Makos
SUBMISSIONS:
For the Applicant: Paul Oddi, counsel
For the Respondent: Danielle Lecours, counsel
Held in writing: November 29, 2016
INTRODUCTION
[1]. The applicant was injured in an automobile accident on September 24, 2015, (the "Accident") and sought benefits from her insurer, Unifund Assurance Company (the “respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
[2]. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on June 22, 2016.
[3]. The issue in dispute was whether the applicant was entitled to medical benefits for goods and services in the amount of $1180.00, based on a Treatment and Assessment Plan (OCF-18) submitted by Dr. Colin Elkin (Chiropractor) dated June 1, 2016 (the “Treatment Plan”), and denied by the insurer on June 15, 2016.
[4]. A case conference was held on September 13, 2016 via teleconference at which time both parties agreed to a resumption on September 28, 2016. At the resumption, the parties were able to resolve the issue in dispute, but not before raising issues regarding costs. The parties were advised to provide written submissions for the Tribunal’s consideration.
ISSUES
[5]. The applicant seeks payment for legal fees in the amount of $750 plus HST, plus the $100 filing fee for the Tribunal. The applicant also seeks a “special award” alleging the respondent was unreasonable in withholding payment of the June 1, 2016 Treatment Plan.
[6]. The issues to be decided are as follows:
[7]. Is the applicant entitled to recover the costs of the proceeding pursuant to section 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”)?
[8]. Did the respondent unreasonably withhold or delay payment to the applicant pursuant to section 10 of Ontario Regulation 664?
RESULT
[9]. The applicant is not entitled to recover costs of the proceeding pursuant to section 19.1 of the Rules.
[10]. The applicant is not entitled to a special award. The respondent did not unreasonably withhold or delay payment to the applicant pursuant to section 10 of Ontario Regulation 664.
BACKGROUND
[11]. The applicant was 76 years old at the time of the accident. She was rear-ended by another vehicle after which the front end of her vehicle struck a cement median. Her injuries included a fractured left wrist and fractured sternum.
FACTS AND EVIDENCE
[12]. The applicant was in an accident on September 24, 2015 and submitted an application for accident benefits to the respondent on October 5, 2015.
[13]. The respondent approved and paid for several treatment plans from October to December 2015 all geared toward providing therapy to injuries listed as a fractured sternum, fractured forearm and WAD I with complaints of neck pain stiffness or tenderness only.
[14]. As a result of continued pain and stiffness in her neck, shoulders and upper back, the applicant attended her family physician, Dr. Rowland, on March 28, 2016 who completed a Disability Certificate which noted neck/shoulder and left arm problems and noted that the applicant had seen Dr. Elkin (a chiropractor) for her neck and shoulders.
[15]. The applicant attended the recommended chiropractic treatments and paid for them herself. Dr. Elkin subsequently submitted the Treatment Plan, dated June 1, 2016, which was the subject of the application before the Tribunal but settled at the resumed case conference on September 28, 2016.
[16]. The respondent provided an explanation of benefits on June 15, 2016 denying the Treatment Plan. The respondent requested the updated clinical records to justify the request for further medical benefits.
[17]. The applicant asserts that the denial and request for updated records was unreasonable as there was no shortage of medical documentation in her file creating a clear and causal link between the accident and her neck, shoulder and back pain. The applicant submits that the respondent simply did not want to review the medical information available. Further, she alleges that the respondent did not conduct an independent examination and did not directly request updated medical documentation even though they had written authorization to do so and then when further medical documentation was provided to the respondent, they refused to give it proper consideration when determining the reasonableness of the Treatment Plan.
[18]. This alleged behaviour of the respondent forms the basis of the applicant’s claim that the respondent unreasonably withheld and delayed payments to her.
[19]. The respondent submits that the decision to deny the Treatment Plan was based on their consideration of all the documentation, medical or otherwise, that was obtained throughout the course of the claim and based on the medical records available at the time of the denial.
[20]. Along with their reply and submissions, the respondent provided a number of reports and records, which I have reviewed.
ANALYSIS
Jurisdiction – Special Awards
[21]. With respect to claims for special awards, s.10 of Ontario Regulation 664 states that the Tribunal 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 the insured if an insurer has unreasonably withheld or delayed payment of a benefit. This was referred to as a “special award” prior to the April 1, 2016 amendments to the Act. I note that the appeal filed with the Tribunal made no mention of a claim for a special award however there was a request made as part of the applicant’s submission for this decision, in other words, after the disputed benefit was paid by the insurer.
[22]. In Rocca and AXA (FSCO, A97-000903), Director Joachim stated that withholding or delaying of benefits until shortly before the hearing can attract a special award, if the Insurer’s actions are unreasonable. In the appeal of Jensen and GAN Canada (FSCO, P96-00079), Director Naylor opined that the insurer agreeing to pay disputed benefits did not necessarily dispose of the question of a special award. I find this reasoning persuasive in the case before me and I find that in this case, the Tribunal has jurisdiction to consider the request for a special award.
[23]. Did the respondent unreasonably withhold or delay payment to the applicant pursuant to section 10 of Ontario Regulation 664?
[24]. The applicant made a number of assertions as the basis of her special award claim.
[25]. The applicant asserts that the insurer improperly denied the Treatment Plan by claiming they did not have sufficient medical evidence that indicated the applicant required further treatment as a result of the Accident.
[26]. Having reviewed the submissions and supplemental documents, I do not find that the denial of the Treatment Plan was improper especially in light of the previous medical information the insurer had in its possession from CBI Health from Dr. Szucs, a chiropractor and Michelle Ward, an occupational therapist, neither of whom suggested that the applicant required further treatment.
[27]. The applicant submitted that the insurer’s denial of the Treatment Plan was wrongful and they did not comply with section 38(8) of the Schedule as no medical reason was provided to the applicant in denying the Treatment Plan.
[28]. I find this assertion valid in as much as the Explanation of Benefits dated June 15, 2016 provides no medical explanation for the denial of the requested benefits. Instead, it stated “Please provide us updated medical clinical notes and records that indicate you require further treatment as a result of the motor vehicle accident.” While the respondent was not technically in compliance with s.38(8), I disagree that their conduct amounted to an unreasonable withholding or delay of payment in light of the circumstances. The Treatment Plan was the first request for benefits that had been denied by the respondent after approving several previous treatment plans.
[29]. The applicant submitted that the respondent failed to request clinical notes and records from the applicant’s family doctor, despite being provided with the applicant’s medical authorizations to do so.
[30]. The onus is not on the insurer to seek out information to justify a request for benefits from an applicant. In providing the explanation of benefits for the Treatment Plan, the respondent did not ask the applicant to provide updated medical information from Dr. Elkin but instead made a more generalized request for medical clinical notes and records indicating that she required further treatment as a result of the motor vehicle accident. The Tribunal finds there was no failure on the respondent’s part and the nature of the respondent’s request left the door open for the applicant to provide pertinent medical information from any of her providers which might support her request for further treatment.
[31]. The applicant submits that the insurer failed to contact Dr. Elkin to request medical documentation or further particulars regarding the recommended treatment.
[32]. As previously stated, the respondent’s request on the explanation of benefits was open-ended, allowing the applicant to provide medical information from any of her treatment providers in support of her care and not just Dr. Elkin who had prepared the Treatment Plan. In fact, once the respondent was provided with Dr. Elkin’s clinical notes and records, they did not shed any further light on the applicant’s condition or need for care. While the respondent was not provided with this information until after the LAT application had been filed, it was (presumably) used to prepare the Treatment Plan.
[33]. The applicant submits that the insurer failed to schedule an insurer’s medical examination after they had received a completed Disability Certificate and a Treatment plan, which they denied.
[34]. In addressing this assertion, I assume that the documents being referred to are the disability certificate dated March 28, 2016 and the June 1, 2016 Treatment Plan that was the subject of the dispute.
[35]. With respect to the disability certificate, there is some question as to whether the respondent actually had a copy of that document and neither party provided it for my review. Whether the insurer had this document or not, the insurer is not obligated to conduct an examination under section 44 of the Schedule based on references to treatment or the need for treatment posed in a disability certificate.
[36]. By the time the respondent received the Treatment Plan, which is the appropriate form for considering applications for medical and rehabilitation benefits, the respondent had ample information that as of early 2016, the applicant was physically and functionally recovered from her injuries. Instead of putting the applicant through the inconvenience of an insurer’s examination for the disputed medical benefits, it appears that the insurer chose to request updated medical information to support the claim for further benefits.
[37]. In maintaining their decision to deny benefits for the disputed Treatment Plan, the applicant submits that the respondent chose to ignore all previously submitted clinical notes, approved treatment plans, assessments and disability certificates.
[38]. Having reviewed the respondent’s submissions, I cannot agree with this assertion by the applicant. The evidence does not support the assertion that the respondent ignored previous medical information. The respondent approved several treatment plans for facility-based rehabilitation as well as occupational therapy evaluation and management in the home environment. By February 23, 2016 the insurer was provided information from the applicant’s treatment providers that she was recovered and being discharged from further therapy to a self-directed program.
DECISION
[39]. In evaluating the evidence with respect to a claim for a special award, there needs to be evidence that the insurer was unreasonable in withholding or delaying payment for requested benefits. Based on my analysis as outlined above, the respondent’s withholding of payment for the Treatment Plan was not unreasonable. At the outset of their denial, the respondent requested that the applicant provide updated medical information to support her need for further care. Once the information was provided, the respondent promptly reversed its denial and paid the benefits.
[40]. Is the applicant entitled to recover the costs of the proceeding pursuant to Rule 19.1?
[41]. The Tribunal only has jurisdiction to award costs under Rule 19. The assertions outlined above all related to purported actions carried out by the respondent prior to the submission of the appeal to the Tribunal. With respect to claims for costs as a result of the appeal, the applicant provided no evidence in terms of specific allegations of actions during the proceeding. In applying Rule 19, there was no evidence that the respondent acted unreasonably, frivolously, vexatiously or in bad faith at any point in time since the appeal was filed at the Tribunal up until it was settled.
[42]. The applicant is not entitled to recover costs.
Released: February 23, 2017
___________________________
Bruce Makos, Adjudicator