Tribunal File Number: 18-004487/AABS
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:
D. D.
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Todd M. Wasserman, Counsel
HEARD:
In Writing on: March 4, 2019
OVERVIEW
1The applicant was injured in an automobile accident on August 9, 2015 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").
2The applicant applied for certain medical and rehabilitation benefits which the respondent denied funding for. The respondent eventually paid for the medical and rehabilitation benefits and now the applicant seeks an award for delayed payment. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.
ISSUES
3The disputed claim in this hearing is:
- Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?
RESULT
4The applicant is not entitled to an award under Ontario Regulation 664.
BACKGROUND
5The applicant suffered numerous injuries, including a fractured femur, as a result of a motorcycle accident. The applicant commenced an accident benefits claim with Aviva Insurance Company ("Aviva") and Aviva adjusted the applicant's claim until the respondent took over priority and became the adjusting insurer in August 2017, about two years after the accident.
6The applicant's claim for an award is based on two treatment plans denied or partially denied by Aviva. The first was a chiropractic treatment plan submitted January 11, 2016 in the amount of $5,599.69, which was approved up to $4,962.77, and a treatment plan submitted April 7, 2016 in the amount of $899.38 which was denied in full ("the 2016 plans").
7Following Aviva's refusal to pay the 2016 plans, the applicant proceeded to incur some of the proposed treatment. Nearly two years later, on May 17, 2018, the applicant commenced an application with the Tribunal to resolve the dispute over entitlement to the 2016 plans.
8After filing the appeal, the applicant provided most of the requested documents to the respondent on October 23, 2018, two days prior to the scheduled case conference. In turn, the respondent resolved the account with the treatment facility, effectively paying for the 2016 plans.
9The applicant claims the delay to approve and pay for the 2016 plans is unreasonable and claims an award under Ontario Regulation 664, enacted under the Insurance Act.
AWARD
10Pursuant to section 10 of Ontario Regulation 664, an award of up to fifty percent of the benefits payable may be granted by the Tribunal when it finds that the respondent has unreasonably withheld payment of a benefit.
11The applicant submits the respondent had enough information to approve the 2016 plans at the time they were submitted. The respondent submits payment was delayed because the applicant was non-compliant with Aviva's section 33 request. The applicant was given an opportunity to make reply submissions but chose not to.
SECTION 33 REQUEST FOR INFORMATION
12Section 33(1) states that, within 10 business days, an applicant shall respond to an insurer's request for information. The request can be made for the production of information reasonably required to assist in determining the applicant's entitlement to a benefit.
13Aviva's section 33 request made in the letter to the applicant dated December 2, 2015 was for:
...clinical notes and records 3 years pre mva to present for all treating professionals, hospital records from all hospitals attended, including but not limited to Southlake Hospital, Sunnybrook Hospital, Dr. Che, and Dr. Jenkinson, pharmacy records, OHIP records, ambulance call report, police report, employment records from (Employer 1) and (Employer 2) and CRA Assessment 2014...
14Aviva advised the request was made pursuant to section 33 of the Schedule and the documents were due within 10 business days.
15The applicant's failure to address the section 33 request and the decision to not make reply submissions indicates, in my view, that the applicant does not contest the validity of the respondent's section 33 request. As a result, I find the applicant failed to comply with Aviva's request, pursuant to section 33(1). The applicant later complied with the section 33 request on October 23, 2018, after the applicant commenced this application and just two days prior to the case conference. The respondent then paid the treatment facility for the incurred treatment on or around October 31, 2018.
16I find Aviva's and the respondent's refusal to pay benefits was not unreasonable, as it was made pursuant to section 33(6). Section 33(6) provides that the respondent may withhold payment of a benefit if the applicant is not compliant with a proper section 33 request. To-date, the applicant has not disputed the section 33 request, nor has the applicant provided a reasonable explanation for the delay.
CONCLUSION
17The respondent's refusal to pay for the 2016 plans was not unreasonable and, as a result, the applicant is not entitled to an award under Ontario Regulation 664.
Released: September 5, 2019
Brian Norris
Adjudicator