Tribunal File Number: 18-011969/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:
Maeghan Easson
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Avvy Go, Adjudicator
Appearances:
For the Appellant:
Mitchell Kent, Paralegal
For the Respondent:
Michael McChesney, Counsel
Heard:
In Writing: July 15, 2018
OVERVIEW
1On May 24, 2018, the applicant was crossing the street as a pedestrian when she was hit by a vehicle making a left turn.
2She sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). On April 18, 2019, the respondent began paying her an income replacement benefit (IRB) in the amount of $385.15 weekly for the period of June 1, 2018 onwards. However, after making multiple requests for information from the applicant that went unanswered, the respondent suspended the IRB. In response, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”) seeking interest on overdue payment and an award, claiming that the respondent has failed to act in a prudent manner as required under the Schedule.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
a) Is the applicant entitled to receive interest on any overdue payment of IRB for the period of July 30, 20181 to April 18, 2019?
b) Is the applicant entitled to an award under R.R.O. 664 because the respondent unreasonably withheld or delayed payment of the IRB?
RESULT
4For the reasons set out below, I find that the applicant is not entitled to receive interest and is not entitled to an award.
ANALYSIS
Preliminary Issue: Has the respondent unreasonably withheld or delayed payment of the IRB?
5The basis of the applicant’s claim for payment of interest and award stems from her argument that the respondent has unreasonably withheld or delayed the payment of the IRB. I will therefore begin my analysis in this regard.
Relevant Provisions under the Schedule
6The applicant submitted that the respondent has unreasonably delayed the payment of the IRB by, among other things, making several irrelevant and excessive demands under s. 33 of the Schedule. The respondent, on the other hand, submitted that it is entitled to schedule a s. 44 assessment or make a s. 33 request pursuant to s. 36(4) of the Schedule. For ease of reference, the relevant provisions of the Schedule are summarized as follows and will guide me in my analysis throughout my decision.
7Section 32 provides that the insurer shall promptly provide a person who applies for a benefit the appropriate forms, a written explanation of the benefits available, information to assist the person to apply for benefits, and information for the election relating to income replacement, non-earner and caregiver benefits, if applicable. Further, subsection 32(5) states that the applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the forms, while subsection 32(6) states that if there is missing information, the insurer shall notify the applicant within 10 business days of the missing information that is required.
8Section 33(1) sets out the information that the applicant shall provide to the insurer within 10 days after receiving a request, including any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit, and a statutory declaration as to the circumstances that gave rise to the application, while s. 33(2) states that, if requested by the insurer, an applicant shall submit to an examination under oath.
9Section 35(1) states that, if the applicant qualifies for two or more of the benefits, the insurer shall within 10 days after receiving the application, give a notice to the applicant advising the applicant to elect the benefit they wish to receive within 30 days.
10Section 36(4) states that, within 10 business days after receiving the application and completed disability certificate, the insurer shall:
a. Pay the specified benefit;
b. Give the applicant a notice explaining why the applicant is not entitled to the benefit, and if the insurer requires a s. 44 examination, advising the applicant of that requirement; or
c. Send a request to the applicant under s. 33(1) or (2).
Relevant Timeline of Events
11As the applicant’s claim for interest and award hinges on what has transpired throughout her interaction with the insurer, a clear timeline of who has done what is thus critical to my analysis.
12Indeed, both parties acknowledge the importance of the timeline and both have provided the Tribunal with their own summary of the timeline of events. After reviewing the record and the parties’ submissions, the following in my view is a complete timeline of relevant events:
Dates:
Events:
May 24, 2018
Date of the Accident
Jun 5, 2018
The applicant completed a Disability Certificate (OCF-3)
June 27, 2018
The applicant submitted an Application for Accident Benefits (OCF-1)
August 7, 2018
The respondent requested an OCF-3 and OCF-2 (employer’s confirmation form)
August 29, 2018
OCF-3 was submitted by a physiotherapy clinic on the applicant’s behalf
September 4, 2018
The respondent requested an OCF-10 (election form)
October 5, 2018
The applicant submitted an OCF-2, T4, and Record of Employment (ROE)
October 16, 2018
The applicant submitted an OCF10 electing IRBs
October 19, 2018
The respondent made a first s. 33 request, asking for, among others, various clinical notes, hospital records, employment records, and notice of assessment for 2017
October 23, 2018
The respondent issued a s. 44 notice of assessment scheduling a psychology assessment on November 16, 2018 and physiatry assessment on November 23, 2018
November 13, 2018
The respondent advised that the IRB would not be paid out until s. 33 request was fulfilled
November14, 2018
The applicant’s counsel replied, stating the respondent had sufficient information for the IRB calculation
November 16 and17, 2018
The respondent advised that the applicant had failed to attend both s. 44 assessments
December 4, 2018
The respondent made a second s. 33 request
December 11, 2018
The applicant applied to the Tribunal
December 19, 2018
The respondent advised the applicant to reschedule s. 44 assessment for physiatry to January 18, 2019
January 3, 2019
The respondent made a third s. 33 request
January 18, 2019
The applicant attended the s. 44 assessment but stated that she has previously seen the assessor, a physiatrist. Due to potential conflict, the assessment was rescheduled
February 5, 2019
The respondent sent a notice to the applicant to reschedule the assessment to March 6, 2019
February 27, 2019
The applicant cancelled the March 6, 2019 s. 44 assessment
February 28, 2019
The applicant provided partial clinical notes and records as per the s. 33 request
March 27, 2019
The applicant attended s. 44 assessment for physiatry
April 5, 2019
Section 44 multidisciplinary report completed
April 10, 2019
The respondent advised the applicant of her entitlement to IRB
Analysis on the Issue of Unreasonable Delay
13I will begin my analysis with a summary of the applicant’s key objections to the way the respondent had handled her claim.
14The applicant submitted that s. 36 of the Schedule makes no reference to what documents are required for entitlement, other than a completed disability certificate. The applicant submitted a number of documents, including the OCF-3, which stated that she had dislocated her shoulder and hip. The applicant argued that these two injuries are so serious that she should have been entitled to her IRB immediately. The applicant submitted that the insurer unreasonably asked her to submit employment files from two previous workplaces. The applicant was terminated from one position nine months prior, and from a second job four months prior to the accident. The applicant also confirmed at the Examination Under Oath that she was on medical Employment Insurance (EI) benefits. As such, the applicant submitted that the respondent should not have made further s. 33 requests regarding her prior employment records which were irrelevant to the IRB claim.
15Finally, with respect to the clinical notes and records, the applicant submitted that she had provided the records from the hospital and clinical notes from her family physician, which were extensive. These records were submitted on February 28, 2019. The applicant further argued that clinical notes and records were not fully required for a s. 44 assessment and that the most relevant clinical notes and records were already submitted to the respondent. By making a s. 33 request that had no bearing on entitlement to IRB, the applicant submitted that the respondent made these requests to delay payment and has failed to comply with both the wording and the spirit of the Schedule.
16Having reviewed the records, I find that the applicant’s submission that the respondent made excessive demands and unreasonably withheld payment is lacking in merit. My finding is based on the following.
17To start, when the applicant initially submitted her Disability Certificate on August 29, 2018, it covered both an IRB and a non-earner benefit. Six days later, the respondent asked the applicant to elect which benefit she wanted. The applicant did not make an election until October 16, 2018. I note, as the respondent has submitted in its submission citing Lefebvre v. Aviva Insurance Company2, the application for accident benefits is only complete if the applicant has made a s. 35 election. I thus accept the respondent’s submission that the insurer’s obligation to pay or take other steps under s. 36(4) is not triggered until an election is made by the applicant in this case.
18Meanwhile, on October 5, 2018 the applicant submitted a record of employment (ROE) suggesting that she had only been employed for 20 weeks in the year prior to the accident. The problem: pursuant to s. 5(1), an applicant who was not employed at the time of the accident, like the applicant here, must have worked at least 26 weeks during the 52 weeks prior to the accident or must have been receiving EI benefits. I thus find it reasonable for the respondent to request additional employment information in order to determine the applicant’s employment history within the 52 weeks prior to the accident.
19In addition, one of the delays in this case was caused by the applicant’s failure to attend the s. 44 assessments. The respondent initially scheduled the applicant to attend s. 44 assessments (for psychology and physiatry) in November 2018. The applicant did not attend both assessments as scheduled. The applicant appears to have attended the psychological assessment eventually. But after the physiatry assessment was rescheduled to January 2019, it had to be rescheduled again due to the conflict as the applicant disclosed that she had seen the assessor previously. Neither of the delays were caused by the respondent. The applicant submitted that the injuries described in the Disability Certificate including dislocation of shoulder and hip were serious enough to grant her IRB. Yet I note that the health professional who completed the Disability Certificate in June 2018 opined that the anticipated duration of the applicant’s disability was nine to 12 weeks. I thus find it reasonable for the respondent to ask for a s.4 4 assessment after the election was made by the applicant in October 2018 in order to determine the applicant’s entitlement to IRB. I further note that six days after the multidisciplinary report became available, the respondent approved the applicant’s IRB, which I find was a timely decision.
20I also find it reasonable for the respondent to ask for clinical notes and medical records to assess the applicant’s entitlement to IRB. The applicant did not provide any explanation as to why these records and notes were not provided until February 28, 2019.
21In conclusion, the Schedule imposes an obligation on the applicant to provide information to the insurer, as well as an obligation on the insurer to provide a timely response and assessment of the application. In this case, whatever delays that may have led to the applicant not getting her IRB until many months after the accident were not, in my view, caused by the respondent. The information requested by the respondent was necessary to assess the applicant’s entitlement and the respondent did reach a decision in a timely manner after it had received all the information required.
Issue 1: Is the applicant entitled to interest on the overdue payment?
22Section 51(1) of the Schedule states that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required. Section 51(2) further provides that if payment of a benefit is overdue, the insurer shall pay interest on the overdue amount. In this case, interest is not payable as I did not find that the benefit was unreasonably withheld.
23Citing the decision of the Court of Appeal for Ontario in Van Glader v. Economical Mutual Insurance Company3, the respondent submitted that no payment was overdue. The Court notes, at para. 97, as follows:
97While payment is not overdue until the insured person has provided the required information in support of the claim, “this does not require the claim to be established to an insurer’s or an arbitrator’s satisfaction. Only where the insured person acts in a manner that effectively prevents the insurer from assessing his or her entitlement,” will interest accrual be delayed.
24The respondent also referred to another decision4 of this Tribunal which finds that, under s. 33(8) of the Schedule, payment for the IRB was not outstanding unless and until the applicant provided a reasonable explanation for the delay in providing the information.
25Applying the above two decisions, I find that there was no outstanding IRB in this case as the applicant did not provide all the relevant medical records until February 28, 2019 and did not attend the complete s. 44 assessment until March 27, 2019. The applicant has not provided any reasons for her delay in providing the records, which in turn led to the delay in finalizing the assessment of her entitlement to IRB. As there is no overdue amount, the applicant is thus not entitled to any interest.
Issue 2: Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
26The applicant submitted that the respondent unreasonably withheld and delayed IRB payment and asked for a special award of $8,858.45.
27This Tribunal has the power to 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, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, pursuant to s.10 of RRO 1990, Reg. 664.
28The respondent cited Brazier v. RBC General Insurance Co.5, a decision by the Financial Services Commission of Ontario which sets out a number of general considerations that guide an inquiry into whether an insurer’s conduct warrants an award. In sum, the FSCO decision states that the question of whether an insurer’s delay or failure is “unreasonable” is fact-driven. An insurer is not held to a standard of perfection and is not to be found unreasonable just because an arbitrator concludes its claims decision was wrong; and that the conduct of both parties should be considered. Finally, the sort of conduct that would constitute “unreasonable” behaviour includes “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour.
29Other than alleging unreasonable delay and excessive demands for information, the applicant did not point to any specific behaviour of the insurer that could be described as “imprudent, stubborn, inflexible, unyielding or immoderate”. As I have already noted, I do not find the insurer’s request for medical reports, employment records and the s.44 assessments to be unreasonable or excessive, nor do I find the insurer has caused the delay in issuing the IRB payment to the applicant. As such, I do not find the applicant entitled to an award.
FINDING & ORDER
30There is no payment overdue and as such there is no interest owing. The applicant is not entitled to any award.
Released: October 10, 2019
Avvy Go
Adjudicator
Footnotes
- This was the date noted in the Case Conference Order.
- Lefebvre v. Aviva Insurance Company of Canada, 2018 ONSC 5676, 2018 ONSC5676 (Div Ct)
- Van Glader v. Economical Mutual Insurance Company 2016 ONCA 804
- 2017 LAT Decision 16-000284 v. RBC Insurance Company
- Brazier v. RBC General Insurance Co, [2009] O.F>S.C.D. No. 58