Mohammud Salamath v. Aviva General Insurance, 2020 CanLII 34502

1The applicant, Mohammud Salamath, was involved in an automobile accident on March 7, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') O. Reg 34/10. He applied to the respondent, Aviva General Insurance (“Aviva”), for medical benefits and for the cost of an assessment. Initially, Aviva denied payment of these benefits but, by the time of the hearing, it had paid them. The sole remaining issue is interest on the cost of assessment.

2The dispute over interest focusses on when Aviva received the treatment and assessment plan (OCF-18) and invoices for the assessment. Mr. Salamath argues that an OCF-18 was submitted to Aviva on March 28, 2018 through the required electronic submission system, namely the Health Claims for Auto Insurance system (HCAI). Aviva disagrees. It submits that it did not receive the OCF-18 on March 28, 2018, but later, in response to its March 30, 2020 letter advising Mr. Salamath and the Tribunal that it would pay for the benefits in dispute provided the treatment facility submitted an OCF-18 on HCAI.

3I find that Aviva then paid the outstanding amount within the time limits set out in the Schedule. There was no evidence before me that Mr. Salamath ever forwarded an invoice prior to March 30, 2020.

OBLIGATION TO PAY - RIGHT TO INTEREST

4Section 38 of the Schedule sets out the steps the parties must take in dealing with a claim for a benefit. Aviva’s obligation to pay for benefits is triggered by the receipt of an invoice based on treatment approved after receipt of an OCF-18. Section 38(2) specifically excuses Aviva from liability to pay for treatment incurred before receipt of an OCF-18. On receipt of an OCF-18, Aviva has 10 days to advise its insured of the treatment it will pay for, the treatment it will not pay for, and whether it requires its insured to undergo an examination by a healthcare provider of its choice: s. 38(8).

5After receiving an invoice for benefits it has agreed to pay, Aviva has 30 days to pay: s. 38(15). If Aviva fails to pay in accordance with the Schedule, interest is payable at the rate of 1% per month, compounded monthly, on the outstanding balance: s. 51(1). That interest rate then drops to the rate set out in the Courts of Justice Act once Mr. Salamath applied to the Tribunal to resolve the dispute: s. 51(4). Without doing a detailed calculation, it would appear that the maximum possible outstanding interest in the current dispute is approximately $500.

6As stated above, Aviva has 10 days to respond to an OCF-18. If it fails to do so, then, from the eleventh day forward, it is liable to pay for any incurred treatment until it does respond. I see nothing in this provision to relieve Mr. Salamath from having to submit invoices and, until invoices for treatment are received, the obligation to pay interest is not triggered.

WHEN DID AVIVA RECEIVE THE INVOICE?

7The evidence relied on by Mr. Salamath in support of his position is set out in the unsworn affidavit of Dr. Dahir Hashi included in Mr. Salamath’s materials. The affidavit states that, on March 28, 2018, an OCF-18 for the cost of a chronic pain assessment “was sent” to Aviva via an electronic system called Universal Scheduling. The affidavit goes on to state that Universal Scheduling is an approved system for submitting HCAI documents and that, since 2011, when Dr. Hashi began using it, he has had no issues with the interface between Universal Scheduling and HCAI.

8More specifically, paragraph 4 of the affidavit sets out what happened on March 28, 2018 but fails to identify to whom the OCF-18 was sent, as follows:

4. On March 28th, 20 I 8, a Treatment and Assessment Plan (OCF-18) for a chronic pain assessment, dated March 13th, 2018, was sent to Universal Scheduling, which is the same as the HCAI system. Universal Scheduling responded on March 29th, 2018 with a denial and assigned HCAI number #18032803834. Attached hereto and marked as Exhibit "A" is a true copy of the treatment plan, and the HCAI submission indicating the HCAI tracking number.

9Exhibit “A” to the affidavit is the HCAI log received by Dr. Hashi’s clinic. It confirms that an OCF-18 was sent via HCAI and gives an HCAI number. Even were I to accept that the unsworn affidavit is correct, it is silent regarding when the amounts were invoiced. An OCF-18 is not an invoice. If interest were chargeable, it would not be triggered until 30 days after receipt of