Tribunal File Number: 17-001630/AABS
Case Name: 17-001630 v Travelers Canada
In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J. G.
Applicant
and
Travelers Canada
Respondent
DECISION
ADJUDICATOR: Rakesh Sharma
APPEARANCES:
For the Applicant: Kiro Soliman, Representative for the Applicant
For the Respondent: Kathryn Ball, Counsel for the Respondent
Heard In-Writing: August 14, 2017
OVERVIEW:
1The applicant was injured an automobile accident on October 5, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010(“Schedule”).
2The applicant submitted a Treatment and Assessment Plan (OCF18) for chiropractic treatment. The respondent denied the said treatment and assessment plan on the grounds that the policy limit of $3,500 under the Minor Injury Guideline (MIG) has been exhausted and therefore the treatment plan was not payable.
3The applicant disagreed with the decision of the respondent and submitted an application for dispute resolution to the Licence Appeal Tribunal – Auto Accident Benefits Service (the “Tribunal”). At the case conference the issues in dispute did not resolve and the parties proceeded to a written hearing.
4Subsequent to the case conference held on May 29, 2017 and before the commencement of the written hearing on August 14, 2017 the respondent in its written submission dated July 17, 2017 acknowledged that there was an inadvertent failure to communicate directly with the Applicant’s counsel. Despite the absence of evidence to support substantive entitlement, as a gesture of good faith the respondent removed the applicant from the (MIG) and agreed to pay any invoices for incurred treatment.
5Notwithstanding the respondent’s action, the applicant still wishes to proceed on the issues of interest and costs. In his submissions, the applicant also seeks to add as an issue in dispute the entitlement to an award under S.10 O/Reg 664. The respondent has made submissions about the issue of an award under S.10 O/Reg 664, I shall add it as an issue in dispute.
6The issues in dispute are:
- Is the applicant entitled to an award and interest pursuant to s.10 O/Reg. 664?
- Is the applicant entitled to interest on the overdue payment of the benefits?
- Are the parties entitled to costs under the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rule”) 19.1?
RESULT:
7Based on the evidence before me, I find that:
- The applicant is not entitled to an award under s.10 O/Reg. 664.
- The applicant is entitled to interest on the overdue payment of the benefits.
- The parties are not entitled to costs under Rule 19.1.
Is the applicant entitled to an award under s. 10 of O/Regulation 664?
8I find that the applicant is not entitled to an award under s.10 of O/Regulation 664 for the following reasons.
9Section 10 of Regulation 664 states that if the Tribunal finds that the insurer unreasonably withheld or delayed payments 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 owing.
10The onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments.
11The applicant submits that the insurer on or about February 12, 2016 ceased to forward correspondences to the legal representative of the applicant. The applicant in support of his claim for an award provides three reasons: (i) that the insurer circumvented the applicant’s legal representative thereby leaving the applicant without recourse (ii) that the insurer never provided an explanation till the day of the application and (iii) that the insurer was not guided by good sense having deprived the applicant of his rightful benefits.
12Unreasonable in the withholding or delaying of benefits is “behavior by an insurer which was excessive, imprudent, stubborn, unyielding or immoderate, in withholding or delaying payments.”1 An award is not punishment for payment which is simply delayed because of differing view of the file.
13The insurer’s handling of the claim is not to be held to a standard of perfection and should not be judged with the benefit of hindsight, rather, it should be evaluated on the basis of the information available at that time.2
14First, the applicant submits the respondent’s delay and lack of payment is unreasonable because the respondent circumvented the applicant’s legal representative by sending correspondence directly to the applicant. I disagree with the applicant. I agree with the respondent that it was compliant with section 64(2) Schedule by notifying the applicant of its decision. The respondent further submits that section 38(8) of the Schedule requires that the “insured person” be notified of any decision and an “insured person” is defined in section 3(1) of the Schedule and the definition does not include the applicant’s legal representative. The respondent admits inadvertent failure on its part to communicate directly with the applicant’s legal representative however, I do not find this to be sufficient evidence of unreasonably withholding or delaying of benefits.
15Second, the applicant submits the respondent’s delay and lack of payment is unreasonable as it never provided an explanation for the delay until the day of the application to the Tribunal. I disagree with the applicant because the explanation communicated to the applicant was that the policy limit of $3500 under MIG was exhausted and therefore the said treatment plan was not payable and this explanation was communicated to the applicant within the time period required by the Schedule.
16The argument of the applicant that the respondent delayed in removing the MIG limits is not tenable as the applicant failed to provide the evidence to demonstrate that the respondent’s decision to apply the MIG limits was unreasonable. Review of the OCF18 revealed that Under Part 4 of the said OCF18 the health professional completing the form stated “YES” to the question “Is this impairment predominantly a minor injury as referred to the Minor Injury Guideline applicable to the accident?” The decision of the respondent to keep the applicant under MIG all along was reasonable and based on the medical evidence in the OCF18 submitted to the respondent. The applicant was removed from the MIG by the respondent as a gesture of good faith for not sending a copy of the denial letter to applicant’s counsel even though there is the absence of evidence to support the substantive entitlement. I do not find that to be sufficient evidence of unreasonably withholding or delaying payments.
17Third, the applicant submits the respondent’s delay and lack of payment is unreasonable as it was not guided by good sense, having deprived the applicant of his rightful benefits. I disagree with the applicant as the applicant has not substantiated it with any evidence. The respondent’s decision to deny the treatment plan in dispute and to apply the MIG limits to the applicant was reasonable as it was based on the medical evidence provided in the treatment plan. The insurer’s action subsequent to the case conference resulted in the approval of the treatment plan because it did not send a copy of the denial to the applicant’s counsel. The applicant has not persuaded me on a balance of probabilities of unreasonably withheld or delayed payments by the respondent.
18The applicant has not proved his entitlement to an award under S.10 of Reg. 664. The applicant is not entitled to an award.
Is the applicant entitled to interest on the overdue payment of the benefits?
19Since the respondent has taken the applicant out of the MIG and agreed to pay any invoices for incurred treatment. The applicant is entitled to interest on any amounts incurred to date pursuant to s. 51 of the Schedule.
Are the parties entitled to costs according to Rule 19.1?
20Rule 19.1 states:
i. 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.
21The scope of the rule is limited to the conduct of the parties in a proceeding before the Tribunal. A proceeding with the Tribunal starts with the filing of the application by the applicant and continues throughout proceedings until the conclusion of the hearing or other resolution.
22The applicant in his submissions claims entitlement to the costs in the amount of $5,000. The applicant in his written submission relies upon the following to support entitlement to costs: (1) Circumvention of the legal representative throughout the claim process (2) Arbitrary termination of the claim is frivolous and vexatious (3) Missing contents of accident benefits file displays lack of good faith and (4) Vexatious as insurer refused to pay $100 in costs.
23The instances cited by the applicant except for the refusal by the insurer to pay $100 towards costs, relate to acts of the respondent before the commencement of Tribunal proceeding. The applicant highlights the respondent’s refusal to pay costs for $100 as vexatious and designed to burden the applicant with more procedure and delay. I disagree with the applicant, as I do not find that the insurer disagreeing to pay for costs at the applicant’s request as an evidence of unreasonable, frivolous, vexatious and bad faith behaviour.
24The respondent submits it should be entitled to costs because of the non- compliance by the applicant with the Tribunal’s order to produce medical records and that this was unreasonable and vexatious. I disagree. No medical benefit is in dispute for this hearing and the respondent has not shown how it was prejudiced as a result. I am not satisfied that this is evidence of unreasonable, frivolous, vexatious or bad faith behaviour.
25The parties have not met the criteria of entitlement to the costs under Rule 19.1.
26I find neither party is entitled to costs.
Date of Issue: April 23, 2018
Rakesh Sharma, Adjudicator