N. F. v. Aviva Insurance Company of Canada, 2017 CanLII 77344

Licence Appeal Tribunal

Date: 2017-11-14

Tribunal File Number: 17-000456/AABS

Case Name: 17-000456 v Aviva Insurance Company of Canada

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

Between:

N. F.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

Adjudicator: S. F. Mather

Appearances:

For the Applicant: Mariya Verkhovets, Counsel

For the Respondent: Amit Kwatra, Counsel

Heard in writing on: April 26, 2017

Overview

1N.F. (the “applicant”) was involved in a motor vehicle collision on January 2, 2015 and sought various benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”) from the Motor Vehicle Accident Claims Fund (“The Fund”).The Fund provides statutory accident benefits in cases where a person injured in an automobile accident does not have recourse to automobile insurance.

2The Fund refused to determine if N.F. was entitled to any benefits or pay for certain treatment claimed on the basis that his application was incomplete because he did not provide a “Motor Vehicle Accident (Police) Report¹”. The Fund was looking for confirmation that the applicant was involved in an accident.

3The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on January 25, 2017.

4After this application was commenced, Aviva Insurance Company of Canada (the “respondent”) accepted priority for the claims and the files were transferred from The Fund to the respondent on February 6, 2017.

5In its written response to the application to this Tribunal, the respondent denied any liability to pay accident benefits and submitted that the applicant is barred by s. 55 of the Schedule from filing an application with the Tribunal because it did not notify The Fund of the accident within the time limit provided for in section 32(1) the Schedule.

6The matter proceeded to a case conference on March 20, 2017. The parties were unable to resolve the issues in dispute and a written hearing was scheduled.

Issues[^2]

7The issues before me are:

1. Is the applicant barred by s. 55 of the Schedule from commencing an application with the Tribunal?

2. If the applicant is not barred from commencing an application, then I must decide:

a. Are N.F.’s injuries predominantly minor injuries subject to treatment within the Minor Injury Guideline?

b. Is N.F. entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment Plan dated March 18, 2015?

c. Is N.F. entitled to receive a medical benefit in the amount of $2,486.00 for an in-home/attendant care assessment pursuant to a Treatment Plan dated July 30³, 2015?

d. Is N.F. entitled to receive a medical benefit in the amount of $2,599.00 for a chronic pain assessment pursuant to a Treatment Plan dated August 4, 2015?

e. Is N.F. entitled to receive a medical benefit in the amount of $2,644.20 for a psychological assessment pursuant to a Treatment Plan dated August 11, 2015?

f. Is N.F. entitled to receive a medical benefit in the amount of $2,659.01 for physiotherapy services pursuant to a Treatment and Assessment (“Treatment Plan”) dated March 30, 2016?

Results

8I find that :

1. The application is not barred by s. 55 of the Schedule.

2. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

3. N. F. is entitled to the following benefits:

i. a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment Plan dated March 18, 2015;

ii. the cost of examinations in the amount of $2,486.00 for an in-home/attendant care assessment pursuant to a Treatment t Plan dated July 30, 2015.

iii. a medical benefit in the amount of $2,644.20 for a psychological assessment pursuant to a Treatment Plan dated August 11, 2015.

iv. a medical benefit in the amount of $2,599.00 for a chronic pain assessment pursuant to a Treatment Plan dated August 4, 2015.

v. a medical benefit in the amount of 2,659.01 for physiotherapy treatments pursuant to a Treatment Plan dated March 30, 2016.

Analysis

Is the applicant barred by s. 55 of the Schedule from commencing an application before the Tribunal because he did not notify The Fund of his intention to claim benefits within the time period prescribed in s. 32(1) or submit his application for a benefit within the times prescribed in the Schedule?⁴

Notification to Insurer

9An insured person may not apply to the Tribunal for a resolution of a dispute in respect of their entitlement to statutory automobile benefits or in respect to the amount of statutory automobile benefits to which they are entitled if the insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for a benefit within the times prescribed in the Schedule.

10The respondent submits⁵ that the applicant is barred under s. 55 of the Schedule from making an application to the Tribunal because he did not notify the respondent of his intention to claim benefits as soon as reasonably practicable

and he did not submit a claim for benefits until six months after the accident.

11I must decide this issue before I am able to consider the applicant’s entitlement to the benefits.

12The applicant has the burden of proof to show that he notified the insurer as soon as practicable of the circumstances that gave rise to the claim for a benefit or that he submitted an application within the time required by the Schedule. The applicant’s submissions do not address the s. 55 issue and I did not receive any case law to assist me in the interpretation of this issue.

13The applicant’s examination under oath⁶ (the “statement”) provided to The Fund on June 30, 2015 provides the details of the accident.⁷

14On January 2, 2015, the applicant was a front seat passenger in a Toyota Solar driven by K.J., his girlfriend at the time when the vehicle was involved in a collision on Highway 401. A friend of the applicant, G.E., was a rear seat passenger.

15The Ontario Provincial Police (“OPP”) and an ambulance attended at the scene. N.F. did not obtain the police officer’s name or badge number or any information with respect to the licence plate numbers, ownership or insurance for the vehicles involved in the accident

16The applicant did not receive any treatment at the scene and was not transported to hospital. He told the paramedic that he was “o.k.”

17Following the accident N.F. accompanied G.E. to a hospital on the Queensway and to a walk-in clinic but did not seek attention for himself at either facility. He did not seek medical attention until 12 days after the accident when he went to his family doctor⁸.

18The applicant did not report his injuries to the respondent as the driver, K.J., refused to give him the vehicle insurance or vehicle information. He had to personally go to where the car was parked to take a picture of the licence plate.⁹

19The applicant first informed The Fund of the accident on March 30, 2015 when he submitted an incomplete application for benefits.

20The Schedule requires a person who intends to apply for benefits to notify the insurer of his or her intention to apply for benefits no later than the seventh day after the circumstances arose that give rise to the entitlement for the benefit or as soon as practicable after that.¹⁰

21S. 34 of the Schedule provides that a person’s failure to comply with the time limit for notifying the insurer of his intention to apply for benefit or submission of a completed application for benefits does not disentitle the person to a benefit if the person has a reasonable explanation.

22I am satisfied on the balance of probabilities that the applicant notified The Fund as soon “as practicable” by filing his application for benefits on March 30, 2015. I find that upon receipt of the application, The Fund received the required notice of the applicant’s intention to apply for benefits.

23The evidence¹¹ I rely on to make my finding is found in the statement that the applicant provided to Claimspro, the adjuster for The Fund on June 30, 2015. The applicant stated:

• he did not have car insurance of his own at the time of the accident;

• while the Ontario Provincial Police (OPP) attended at the accident, the applicant did not obtain the officer’s name, or badge number at the scene;

• the driver of the vehicle - (the applicant’s girlfriend at the time of the accident) did not want to give the applicant her insurance or car information;

• the applicant did not have the licence plate number and had to locate the car to take a picture of the licence plate.

24I am satisfied that in the circumstances it was impossible for the applicant to notify The Fund within seven days. In my view it would take some time for an ordinary person to determine where to make a claim for accident benefits if they do not have access to the insurance information for the vehicles involved in the collision. Three months does not strike me as an unreasonable amount of time for notification to be given to The Fund in the circumstances of this case.

Timeliness of Application for Benefits

25Upon being notified of a person’s intention to apply for one or more benefits the insurer is required to promptly provide the person with the appropriate application forms and other information¹².

26The applicant is required to submit a completed and signed application form to the insurer within 30 days after receiving the forms¹³. If an application is incomplete the insurer must notify the applicant within 10 business days after receiving the application.

27In this case, the applicant “skipped” the step of notifying the insurer and waiting for an application form and instead on March 30, 2015 he submitted an incomplete application to The Fund which he also relies upon as his notice of intention to claim a benefit.

28Because The Fund did not provide the application forms to the applicant as is contemplated by s. 32(2) of the Schedule a finding of whether the application was made within the 30 does not decide the issue.

29I find that the applicant complied with the requirements of the Schedule when he submitted his application to The Fund on March 30, 2015 (albeit incomplete). Significantly, The Fund acknowledged receipt of the application and requested further documents from the applicant.

30The Schedule distinguishes between a late application¹⁴ and an incomplete application and the remedy for a delay in submitting a completed application is found in s. 32(6) and not s. 55(1) of the Schedule.

31S. 32(6) of the Schedule provides that no benefit is payable before an applicant provides the missing information. S. 55(1) only bars a claim to the Tribunal is if the insured person has not notified the insurer of the claim for benefit or has not submitted an application for the benefit within the time period prescribed by the Schedule. It does not bar an applicant from filing an application with the Tribunal if an application was missing information.

32Being satisfied that the applicant notified The Fund of the circumstances giving rise to his claim for benefits as soon as practicable and that the application was submitted within the times prescribed by the Schedule I find that the applicant is not barred from commencing a proceeding before the Tribunal.

Is the Application for Benefits Complete?

33The respondent argues that the applicant’s application for benefits must be denied because the application to The Fund is not complete. The respondent considers the application to be incomplete because the applicant did not provide The Fund with the Police Report and because the applicant did not provide a reasonable explanation as to why the Police Report was not available. The respondent argues that the Police Report was required to confirm the applicant’s involvement in the accident.

34Section 10 of the Application for Benefits Form (OCF-1) provides that for applications to The Fund the application will not be considered complete until the applicant provides the three additional forms:

• NOTICE OF COLLECTION OF PERSONAL INFORMATION FORM,

• Form 3 – Section 6 MVACF Application for Statutory Accident Benefits,

• Motor Vehicle Accident (Police) Report (“Police Report” )

35Part VIII of the Schedule prescribes the procedures for claiming benefits and the responsibilities of the applicant and insurer. If an application is incomplete the insurer is required to give notice to the applicant advising the applicant of the missing information that is required or that the applicant’s signature is missing as appropriate.¹⁵

36The Fund gave notice to the applicant that the application was incomplete by its letter dated April 9, 2015¹⁶ requesting the three additional forms required for an application to the Fund and that the application be signed. The applicant provided all of the missing information to The Fund except for the Police Report.

37The applicant’s position is that he does not know if a Police Report exists.

38The applicant relies on the decision of the Financial Services Commission of Ontario (“FSCO”) in Motor Vehicle Accident Claims Fund v. Berta Avdeeva (“Avdeeva”)¹⁷ to support his position that his application was complete despite the fact that a copy of the accident report was not provided.

39In Avdeeva the issue was whether the failure by the applicant to provide a Motor Vehicle Accident Report¹⁸ barred a claim against The Fund. The appellant claimed that the wording in the OCF-1 which requires that the applicant applying to The Fund for benefits “MUST INCLUDE” a copy of the Motor Vehicle Accident Report form with the application made the form mandatory. The Director’s delegate, Lawrence Blackman, found that the Motor Vehicle Accident Report is not mandatory when a police report did not exist.

40The respondent argues¹⁹ that this case may be distinguished from Avdeeva because in this case a Police Report was prepared. The applicant does not argue that no report was prepared but rather he was unable to obtain a copy of one.

41While I am not bound by a decision of the Director’s Delegate I agree with the decision in Avdeeva that a Police Report is not mandatory if it does not exist.

42In my view s. 36(7) of the Schedule is the key to determining what information is mandatory for an application to be complete.²⁰ This subsection provides that an insurer may not give notice of an incomplete application unless the insurer, after a reasonable review of the application, is unable to determine without the missing information, whether a benefit is payable.

43I have not been provided with a copy of the application form (OCF- 1) completed by the applicant in this case, and for that reason I am unable to conclude that The Fund would have been unable to determine if an accident occurred from the information provided on the form. The statement the applicant gave to the Fund on June 30, 2015 did however in my view provide the missing information that would allow the Fund to conclude that an accident occurred.²¹

44I am satisfied that as of June 30, 2015 The Fund would after a reasonable review of the information in its possession would be able to determine if a benefit was payable.

45I base this conclusion on the following facts:

• The Form 3²² that the respondent received on June 11, 2015²³ provided The Fund with the licence plate number of the car, and the names of the driver and owner²⁴.

• On June 30, 2015 the applicant gave his statement²⁵ to The Fund and explained the roadblocks that he encountered in trying to determine the insurer of the vehicle.

46For this reason I find that as of June 30, 2015 the respondent had sufficient information to determine if a benefit was payable.

Are Benefits Payable?

47The respondent argues that because the applicant did not notify The Fund of his intention to claim benefits within seven days as provided for in s. 32(1) of the Schedule and because the applicant has not provided a reasonable explanation for the delay, The Fund was permitted under s. 32(10) to delay determining both the applicant’s entitlement to a benefit and the payment of the benefit until the applicant provided a reasonable explanation for the delay.²⁶

48The Explanation of Benefit forms²⁷ the respondent issued for all of the benefits claimed rely upon the applicant’s failure to provide a copy of the accident report exclusively as the reason for not assessing the applicant’s claim for benefits

49Having already determined that The Fund was notified as soon as practicable after the collision, I find that s.32 (10), which provides:

Despite any shorter time limit in this Regulation, if an applicant fails without a reasonable explanation to notify an insurer under subsection(1) within the time required under that subsection, the insurer may delay determining if the applicant is entitled to a benefit and may delay paying the benefit until the later of,

(a) 45 days after the day the insurer received the completed and signed application; or

(b) 10 business days after the day the applicant complies with any request made by the insurer under subsection 33(1)

does not apply in this case because the applicant has not failed without a reasonable explanation to notify the insurer as required by s. 32(1).

50Being satisfied that the application was complete as of June 30, 2015 I find that benefits were payable as of June 30, 2015 and The Fund was not entitled to delay payment of any benefits owing under the Schedule.

Did the Respondent Comply with s. 38(8) of the Schedule?

51Section 38(8) of the Schedule²⁸ requires an insurer to respond to a treatment plan treatment plan within 10 business days and prescribes the notice and information that must be provided to an applicant when a claim for goods, services, assessments or examinations in a treatment plan is denied.

52If an insurer believes that the Minor Injury Guideline applies to the insured person’s impairment the notice required under s. 38(8) must also let the insured person know that it is taking the position that the Guideline applies.

53An insurer who does not give notice in compliance with the Schedule²⁹ faces the consequences set out in s. 38(11) of the Schedule which are:

• The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

• The insurer is obligated to pay for all goods and services, assessment and examinations described in the treatment plan on the 11th business day after the insurer received the application and ending on the day that the insurer gives a notice that complies with s. 38(8).

54The applicant argues that all of the treatment and assessment plans in issue are deemed payable by the Schedule³⁰ for the reason that The Fund did not respond to the plans within 10 days as required by the Schedule.³¹

55It is not clear from the applicant’s initial submissions whether the applicant is simply arguing that the respondent’s notices were late or whether the applicant’s argument is that the notices were deficient and proper notices were not provided within the 10 day period.

56The applicant’s reply submissions clarify that the applicant argues³² that the notices were deficient because the respondent never advised him that it believed the Guideline applied to him and because the respondent did not provide medical reasons for denying the treatments plans in issue.³³

57The respondent submits that the notices were all delivered within 10 days³⁴.

58I have reviewed the notices provided by the respondent for each treatment plan³⁵ in issue and I find that the notices do not comply with the requirement in s. 38(8) for two reasons:

• The notices do not advise the applicant that the respondent is taking the position that the Minor Injury Guideline applies as required by s. 38(9) of the Schedule

• The notices do not provide any medical reasons for denying the benefit

59. The notices only advise N.F. that The Fund considered the application to be incomplete and it would not assess the claim or pay benefits until applicant’s application package was complete.

60Having determined that the notices do not comply with the Schedule I find:

• The respondent is prohibited from taking the position that the insured person suffered an impairment to which the Minor Injury Guideline applies.

• The respondent must pay for the goods, services, assessment and examinations described in the treatment plans before me.

61The respondent argues that a technical breach of the Schedule does not mean that a treatment plan that is deemed approved must be paid by the insurer.³⁶ The respondent relies on the Ontario Court of Appeal decision in Stranges v. Allstate³⁷ (“Stranges”) and the Financial Services Commission of Ontario (“FSCO”) decisions in Chen and State Farm (“Chen”)³⁸ and Sadozai and State Farm (“Sadozai”) as the authorities for its position that it is a precondition that expenses claimed be reasonable and necessary.

62The applicant in his reply submission argues that the respondent selectively reviewed the FSCO decision in Sadozai and State Farm and that the mandatory payment provision was not put to the arbitrator as an argument and was not considered at the appeal.

63The applicant relies on a decision of this Tribunal in R.H. v. TD Insurance Meloche Monnex (T.D. Insurance”) which concluded that the applicant was entitled to the payment of the entire treatment plans under s. 38(11) of the Schedule³⁹

64The Strange case may be distinguished from this case on the facts. It dealt with the inadequacy of a notice of termination of income replacement benefits it did not deal with s. 38(11) of the Schedule and the requirement that a benefit be paid if the s. 38(8) notice is not proper.

65The Chen case did consider the meaning of s. 38(11). The FSCO arbitrator found that once a treatment plan is deemed to be approved an insurer may still validly resist payment of the benefit if the treatment place was not reasonable and necessary

66The arbitrator reviewed the provisions in the Schedule dealing with payments of medical benefits. His starting point is s. 15 of the Schedule which requires the insurer to pay for reasonable and necessary medical benefits.

67He also looked at s. 25()(3)ii of the Schedule which requires that insurer to pay for reasonable fees charged by a health care provider for approving a treatment and assessment plan under s. 38 if the treatment plan is deemed by the Schedule to be payable by the insurer.

68The arbitrator found that the provision in s. 38(11) of the Schedule was a pay pending provision and that the applicant was still required to prove that the medical benefit sought was reasonable and necessary.

69The Chen decision was followed in the Sadozai case which is a Februrary 2017 decision on an appeal to the Director’s Delegate.

70The Director’s Delegate preferred the analysis in the Chen decision and found that it is a precondition for expenses to be payable that they be “reasonable and necessary”.⁴⁰

71I am not bound by decisions of FSCO arbitrators and Director’s Delegates. In my view the use of the word “shall” makes the requirement to pay in s. 38(11)2 mandatory and an insurer is obligated to pay for a treatment plan until the insurer cures the defective notice.

72There is no evidence before me that the respondent issued any further notices to deny the treatment plans in issue.

73While s. 15 of the Schedule requires the insurer to pay for all reasonable and necessary expenses incurred there is no reasonable and necessary requirement in s. 38(11). The requirement is simply to pay for all goods, services, assessments and examination described in the treatment plan.

74In my view the purpose of this section of the Schedule is to require an insurer to respond immediately to a treatment plans in order to provide the insured timely access to treatment. There would be no incentive for an insurer to properly deny treatment and assessment plans if they were not immediately payable under s. 38(11)2.

75This approach to the interpretation of s. 38(11) is the same approach that was recognized in the TD Insurance case a decision of this Tribunal relied upon by the applicant.

Order

76For the reasons provided above I Order:

1. The application is not barred by s. 55 of the Schedule.

2. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

3. N. F. is entitled to the following benefits:

i. a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment Plan dated March 18, 2015;

ii. the cost of examinations in the amount of $2,486.00 for an in-home/attendant care assessment pursuant to a Treatment Plan dated July 30, 2015.

iii. a medical benefit in the amount of $2,644.20 for a psychological assessment pursuant to a Treatment Plan dated August 11, 2015;

iv. a medical benefit in the amount of $2,599.00 for a chronic pain assessment pursuant to a Treatment Plan dated August 4, 2015.

v. a medical benefit in the amount of 2,659.01 for physiotherapy treatments pursuant to a Treatment Plan dated March 30, 2016.

Released: November 14, 2017

___________________________

Susan Mather, Adjudicator

Footnotes

1. 1Note: The motor vehicle accident report and the Police Report are the same document. I have used the term Police Report in this decision
2. 3The Order of the Tribunal made at March 20, 2107 Case Conference shows the date as July 22, 2017, however, a review of the document shows that the applicant did not sign it until July 30, 2017.
3. 4S. 55(1)1. O. Reg. 34/10
4. 5Paragraph 34 of the Insurer’s Written Submissions
5. 6S. 32(1)(b) O. Reg. 34/10
6. 7Tab 1, Insurer’s Book of Documents
7. 8Tab 2, Insurer’s Brief of Documents
8. 9Page 5, Tab 1, Insurer’s Brief of Documents
9. 10S. 32(1) O. Reg. 34/10
10. 11Tab 1, Insurer’s Brief of Documents
11. 12S. 32(2) O.Reg. 34/10
12. 13S. 32(5) O. Reg. 34/10
13. 14S. 32(6)(7)(8) O. Reg. 34/10
14. 15S. 36(6) O. Reg. 34/10
15. 16Tab, 3 Insurer’s Document Brief
16. 17FSCO Appeal P11-000004, November 10, 2011
17. 18Motor Vehicle Accident Report is referred to by The Fund in this case as the “Police Report”
18. 19Paragraph 24, Insurer’s Written Submissions
19. 20S. 36(7) O. Reg. 34/10
20. 21Tab 1, Insurer’s Brief of Document
21. 22Tab 8 Applicant’s Submissions
22. 23Tab 5, Insurer’s Brief of Documents
23. 24Tab 4, Applicant’s Submissions
24. 25Tab 1, Insurer’s Brief of Document
25. 26S. 32 (10)) O. Reg. 34/10
26. 27Tab 5, Insurer’s Brief of Documents
27. 28O. Reg. 34/10
28. 29S. 38(8) O.Reg. 24/10
29. 30S. 38(11)1. O. Reg. 34/10
30. 31S. 38(11) provides that if an insurer fails to give notice in accordance with s. 38(8) in connection with a treatment and assessment plan the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies and the insurer shall pay for all goods, services, assessments and examinations that related to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer give the notice described in subsection (8)
31. 32Page 3, applicant’s reply
32. 33Page 3, applicant’s reply
33. 34Paragraph 19, Insurer’s Submissions
34. 35Tab 9, Insurer’s Brief of Documents
35. 36Paragraph 30, Insurer’s Brief of Documents
36. 372010 ONCA 457, Tab E Insurer’s Book of Documents
37. 38FSCO A13-003892 , May 30, 2016
38. 39R.H. v. TD Insurance Meloche Monnex , Licence Appeal Tribunal, 16-000634, January 17, 2017
39. 40Page 4, FSCO Appeal Order P16-00002
40. 2Although the Order sending this matter to hearing identified a non-earner benefit issue I have not considered this issue because the applicant did not raise non-earner benefits in his application to the Tribunal, list them in his list of factual and legal issues in dispute in his submissions or address them in his submissions or reply submissions.