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:
L. F.
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Derek Grant, Adjudicator
For the Applicant:
Michael Brill, Counsel
For the Respondent:
Thomas R Hughes, Counsel
HEARD:
In Writing on: January 21, 2019
OVERVIEW
1The applicant ("L.F.") was involved in an automobile accident on June 9, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). L.F. submitted several treatment plans to the respondent claiming medical benefits. The respondent ("Aviva") denied these claims from and L.F. submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("the Tribunal").
2Aviva denied L.F.'s claims because it determined that the first treatment plan was previously invoiced and paid. Regarding the second treatment plan, Aviva submits that it approved treatment but that it was not yet invoiced for by Alliance Diagnostics and Treatment Inc. ("Alliance"). L.F.'s position is that the first treatment is reasonable and necessary and should be funded and that the second treatment plan is payable.
3If Aviva's position is correct, the first treatment plan is not payable. Regarding the second treatment plan, L.F. must provide the proper invoices to Aviva in order to receive funding for the approved treatment.
ISSUES
4The issues in disputed were identified as follows:
(i) Is L.F. entitled to a claim for medical benefits in the amount of $3,609.60 for physiotherapy, recommended by Alliance Diagnostics, submitted in a treatment plan dated June 23, 2016, and denied by Aviva on July 18, 2017?
(ii) Is L.F. entitled to a claim for medical benefits in the amount of $425.73 for physiotherapy, recommended by Alliance Diagnostics, submitted in a treatment plan dated August 30, 2016, and denied by Aviva on September 14, 2017?
5The questions I must answer are as follows:
(i) Is the treatment plan of June 23, 2016 payable?
(ii) Did Aviva unreasonably delay payment of the balance of the August 30, 2016 treatment plan to Alliance Diagnostics, thereby qualifying L.F.'s claim for an award?
RESULT
6Based on a review of the evidence before me and for the reasons that follow, I find that:
(i) The June 23, 2016 treatment plan is not payable; and
(ii) Aviva did not unreasonably delay payment of the August 20, 2016 treatment plan to Alliance Diagnostics; and as a result, L.F. is not entitled to an award.
The June 23, 2016 treatment plan is not payable.
7L.F. has not established that this treatment plan is payable, and Aviva, in contrast, has provided me with a payment schedule breakdown for the period related to the treatment plan. As a result, I find the June 23, 2016 treatment plan is not payable.
8There is no dispute from Aviva that the treatment is reasonable and necessary. The only dispute from Aviva is that the treatment plan has already been funded.
9Aviva claims that the treatment plan covering the June 23, 2016 to September 20, 2016 period was covered by the minor injury guideline limit, and invoiced and paid on that basis.
10Aviva submits that Alliance is claiming 15 sessions of physiotherapy were incurred between June 27, 2016 and August 2, 2016 for a total of $1,689.15.1 Aviva provides an explanation of the treatment sessions as follows:
(i) From June 27, 2016 to September 20, 2016 – 15 sessions – for a total of 15 x $112.61 = $1,689.15;
(ii) From September 21, 2016 to January 17, 2017 – 12 sessions – for a total of 12 x $112.61 = $1,351.32; and
(iii) From January 18, 2017 to April 3, 2017 – 8 sessions – for a total of 8 x $112.61 = $900.88;
(iv) The total of the above equals $3,941.35. Aviva's total approval amount equals $5,073.44.
11Aviva contends that Alliance has submitted the following billing:
(i) $1,890.00 for treatment from June 27, 2016 to September 20, 2016; and
(ii) $967.64 for treatment from September 21, 2016 to January 17, 2017.
12Aviva submits that Alliance is billing twice for the period of June 23, 2016 to September 20, 2016. Aviva claims that the treatment plan covering the June 23, 2016 to September 20, 2016 period was covered by the minor injury guideline limit, and invoiced and paid on that basis, and is not payable.
13Although L.F. claims this treatment plan is payable, she has not directed me to any evidence that the treatment plan has not been twice billed. On the contrary, Aviva has provided me with a fulsome payment schedule provided to Alliance, covering the period relating to the June 23, 2016 treatment plan.
14Based on my review of the evidence regarding this treatment plan, I find that Aviva has paid all invoices related to that period. As such, no further payment to Alliance is required for this treatment plan.
The August 30, 2016 treatment plan is payable after invoice is submitted
15L.F. submits that August 30, 2016 treatment plan was disputed in a previous Tribunal application2. L.F. and Aviva were able to settle the matter through a partial release agreement, under which the balance of the August 30, 2016 plan in the amount of $425.73 was to be paid.
16L.F. did not provide any evidence that an invoice for the balance of the claimed treatment has been provided.
17Aviva has confirmed that once L.F. and/or Alliance provide them with an invoice, Aviva will issue payment.
AWARD vs. COSTS
August 30, 2016 Treatment Plan - Aviva did not unreasonably withhold payment to Alliance Diagnostic Inc.
18In her submissions, L.F. also sought a request for costs, which should have correctly been presented as a request for an award. Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. L.F.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has "unreasonably" withheld or delayed payments.
19In contrast, for a party to be successful in receiving a cost award, there must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal's proceeding. This is a high threshold. L.F. is making a claim based on the "unreasonable" delay on the part of Aviva, which rightly goes to a claim for an award, not a claim for costs. I will deal with L.F.'s claim as an award claim.
20L.F. argues that Aviva has unreasonably withheld the $425.73 payment related to the August 30, 2016 treatment plan for more than a year, and, as a result, is seeking an award. L.F. makes her claim on the basis that Aviva has forced her to go to a hearing for an invoiced amount that should have been paid once the partial release agreement was signed.
21Aviva maintains that Alliance has not billed the remaining $425.73 of the August 30, 2016 treatment plan.
22L.F. makes no submissions regarding her claim of Aviva not providing payment of an invoice which L.F. alleges was provided to Aviva. The onus is on L.F. to establish entitlement to a benefit, but also in the subject proceeding, to establish that Aviva unreasonably withheld payment of a benefit. As such, a reply to Aviva's responding submissions on the withholding of payment/award issue would have been helpful. Further, Alliance has the duty to provide invoices for treatment before payment is rendered by Aviva. Aviva has established that invoices that are submitted and payable have been treated as such.
23L.F. has not satisfied her burden of proof. L.F. has not provided me with persuasive evidence of Aviva unreasonably withholding payment to Alliance. As such, I am satisfied to dismiss L.F.'s claim for an award on that basis. I have no evidence on which to establish that Aviva has unreasonably withheld payment of any benefit. On the contrary, Aviva has provided me with a clear and concise breakdown of amounts for treatments, periods of treatments and summaries of amounts paid for treatments.
24There is no evidence before me that Aviva has established the threshold behavior required to justify an award claim under section 10. As a result, I find that Aviva has not unreasonably withheld payment for any benefit; therefore L.F. is not entitled to an award.
CONCLUSION
25For the reasons stated above, I find that L.F. is not entitled to the June 23, 2016 treatment plan as it has already been paid in full. Regarding the August 30, 2016 treatment plan, should L.F. and/or Alliance provide Aviva with an invoice, Aviva has already confirmed the invoice will be paid. In addition, L.F. is not entitled to an award. L.F.'s claim is dismissed.
Released: July 17, 2019
_______________________
Derek Grant
Adjudicator