Tribunal File Number: 18-003850/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.M.
Appellant(s)
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
Appearances:
For the Appellant:
Sevda Guliyeva, Paralegal
For the Respondent:
Anna Kirovska, Counsel
HEARD in writing on:
December 11, 2018
OVERVIEW
1The applicant was injured in an automobile accident on April 2, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits. As a result, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES:
2The disputed claims in this hearing are:
Is the applicant entitled to receive a medical benefit in the amount of $3,517.60 for chiropractic treatment, recommended by Naeha Sareen in a treatment plan submitted July 4, 2016, and denied by the respondent on July 30, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $3,225.80 for chiropractic treatment, recommended by Naeha Sareen in a treatment plan submitted October 6, 2016, and denied by the respondent on October 19, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $2,419.84 for chiropractic treatment, recommended by Dan Shelpakov in a treatment plan submitted April 24, 2017, and denied by the respondent on April 28, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The respondent agreed to approve and pay for the disputed treatment plans. They are no longer in dispute.
4The applicant is entitled to interest as explained below.
5Neither party is entitled to costs.
BACKGROUND
6The applicant was the front seat passenger in a vehicle which rolled onto the passenger side. The applicant suffered several injuries as a result of the accident, including soft-tissue and psychological injuries.
7The applicant claimed entitlement to the disputed treatment plans, which the respondent did not approve, citing the plans were not reasonable and necessary. The applicant applied to the Tribunal for resolution of this dispute. A case conference occurred on August 1, 2018 but the parties were unable to resolve the issues in dispute. At the case conference, the matter was ordered to a hearing. The applicant made initial written submissions on November 9, 2018 and the respondent made response submissions on November 23, 2018, both in accordance with the Tribunal’s order.
8On December 3, 2018, after serving written response submissions and after an exchange of emails with the applicant, the respondent unequivocally approved the disputed treatment plans and paid for the goods and services incurred up to that point.
9Following the respondent’s approval and payment of the treatment plans, the applicant made reply submissions, advising of the settlement of issues 1, 2, & 3, but maintaining a claim for interest on overdue payments as well as costs of the proceeding.
INTEREST
10The applicant incurred almost all of the goods and services proposed in the disputed treatment plans and claims interest pursuant to section 51 of the Schedule. The respondent submits the denials for the disputed treatment plans were proper and in accordance with the Schedule and no interest is owed as a result.
11For the following reasons, I find the applicant is entitled to interest on the amounts incurred for all three of the disputed treatment plans. I find the interest period started April 27, 2018, when the application was made to the Tribunal and ended December 3, 2018, when the respondent unequivocally agreed to approve all the disputed treatment plans and pay for the services incurred to-date.
12Pursuant to section 51, interest is payable if the respondent failed to pay a benefit within the time required by the Schedule. Section 51(4) addresses interest as it applies to benefits in dispute. It provides, in the case of a dispute over entitlement to a benefit, interest is calculated for the period that begins on the date on which an application is made with the Tribunal and ends on the date a settlement is reached.
13I find the email dated December 3, 2018 represents a settlement of the disputed treatment plans and the end of the interest period pursuant to section 51(4). This is because the respondent agreed to fund the disputed treatment plans in their entirety, leaving the applicant with nothing to dispute except for interest and entitlement to costs, which remain the issues for this hearing.
14I find the applicant is only entitled to interest on amounts incurred because interest cannot accrue on goods and services which have not been incurred. This is because, pursuant to section 15(1), the respondent is only liable to pay for goods and serviced incurred by the applicant. It would be unreasonable for interest to accrue on something which has yet to become payable.
15Pursuant to section 3(8) an expense may be deemed incurred if the respondent unreasonably withheld or delayed payment of a benefit. I see no reason to deem any of the goods and services incurred. This is because the applicant proceeded to incur nearly all of the goods and services proposed in the disputed treatment plans and there is no evidence to suggest the applicant did not incur treatment because of the respondent’s refusal to pay. In addition, there is no evidence the denial of the disputed treatment plans was unreasonable. The respondent sought the opinion of a medical professional who determined the treatment plans were not reasonable and necessary and the respondent acted on that advice.
COSTS
16In reply submissions, the applicant claimed entitlement to costs of the proceeding. The applicant submits the respondent acted unreasonably, vexatiously, and in bad faith by waiting to approve and pay for the disputed treatment plans until the date in which the applicant’s reply submissions were due and by not paying interest on the incurred goods and services.
17The respondent did not reply to the applicant’s claim for costs. I see no reason to seek the respondent’s submissions on the issue and decline to award costs for the following reasons.
18Pursuant to Rule 19.1 of the Common Rules of Practice & Procedure, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
19I see no evidence the respondent acted unreasonably, vexatiously, or in bad faith when approving and paying for the incurred treatment. The respondent denied entitlement to the disputed treatment plans on account of a medical opinion that the plans were not reasonable and necessary. The disputed treatment and assessment plans were later approved following the exchange of evidence and submissions.
20I am not persuaded by the applicant’s claim that the respondent’s behaviour, approving and paying for the disputed treatment plans after submitting a response, was vexatious. Instead, I find it to be reasonable because the respondent accepted the applicant’s claim and approved and paid for the disputed treatment plans without waiting to see what the applicant’s reply submissions and the final outcome of the hearing would be.
CONCLUSION
21The disputed treatment plans were approved and are no longer in dispute.
22The applicant is entitled to interest on the incurred goods and services pursuant to section 51.
23Neither party is entitled to costs
Released: October 7, 2019
Brian Norris
Adjudicator