Released Date: 05/19/2020 File Number: 19-005496/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:
L.R.
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aggrey Msosa
APPEARANCES:
For the Applicant:
Clifford Singh, Counsel
For the Respondent:
Hermina Nuric, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on February 12, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant applied for a physiotherapy medical benefits and was denied by the respondent on the basis that the applicant’s injuries fell within the Minor Injury Guidelines (the MIG) and that the benefits were not reasonable and necessary. The applicant disagreed and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3The parties participated in a case conference on October 24, 2019. At the case conference, and after some discussions, the applicant withdrew the MIG issue, along with his claim for a treatment plan for physiotherapy and interest. The parties agreed to proceed to a written hearing on the sole issue of his entitlement to an award under O. Reg. 664.
ISSUES TO BE DECIDED
4The Order by Adjudicator Paul Gosio of November 28, 2019 lists the issue in dispute as follows:
i. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?
5The following denied treatment plan which was withdrawn by the applicant at the case conference is the subject of whether an award is justified for the purpose of this hearing:
i. a medical benefit in the amount of $4,720.24 for physiotherapy services recommended in a treatment plan submitted on May 8, 2019 and denied by the respondent on May 21, 2019?
6In his submission the applicant lists the issues in dispute as follows:
i. Is the applicant entitled to payment for the cost of the Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act of $100.00 submitted May 24, 2019 for the treatment plan denied by the respondent on May 21, 2019?
ii. Is the applicant entitled to interest on any overdue payment of the Application?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
7I note that the applicant’s list of issues in dispute is different from the Order of Adjudicator Gosio. I shall address this issue in my analysis below.
RESULTS
8Given the totality of the evidence, I find that the applicant is not entitled to an award.
SUBMISSIONS
9In his submission, the applicant submits that the treatment plan was unreasonably denied by the respondent because there was ample evidence from the treating health professionals that the applicant’s injuries were outside of the MIG. The applicant makes reference to the clinical notes and records of Dr. Robert Inman, a Rheumatologist who investigated the applicant for axial spondylitis – a form of autoimmune disease that affects the spine1.
10The applicant submits that the respondent approved the treatment plan on May 31, 2019 after the applicant had submitted the application to Tribunal disputing the denial.
11A bulk of the applicant’s submissions address the issue of the application filing fee and why the respondent should pay, which is not relevant to the issue of an award and is not part of the issues in dispute listed in Adjudicator Gosio’s Order.
12The respondent disagrees with the applicant and submits that nothing in the handling of the applicant’s file warrants an award. The respondent provided a chronology of events as follows:
i. May 9, 2019, the treatment plan (OCF-18) was submitted to the insurer
ii. On May 22, 2019, within 10 business days, the respondent sent an Explanation of Benefits (EOB) explaining why it believed the applicant’s injuries were in the MIG. The applicant was asked to have his treatment provider submit a Treatment Confirmation Form (OCF-23). It further required the applicant to undergo an Insurer Examination (s.44) to determine whether his injuries were in the MIG.
iii. On May 24, 2019, the applicant applied to the Tribunal before the respondent had completed the adjudication of the OCF-18.
13The respondent submits that the applicant’s submissions have no connection to the issue of an award and is unable to respond. The respondent notes that the CNRs dated September 3, 2019 of Dr. Inman at Tab 3 of the applicant’s submissions postdates the treatment plan. It is the respondent’s position that insurance adjusters do not purport to be able to predict medical documents that will be produced four months after the date on which they are asked to adjudicate an OCF-18. This document is therefore irrelevant to the issues in dispute and should not be given any weight.2
ANALYSIS
14Section 10 of Regulation 664 states that if the tribunal finds that the insurer unreasonably withheld or delayed payments, the Tribunal may 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 together with interest on all amounts owing.
15In this case, where payment of benefits was resolved after filing of the application and at the case conference, the onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits.
16The applicant has not provided any submissions or evidence in support for an award and, consequently, I find that there are no unreasonably withheld or delayed payments that would justify an award from the respondent. The respondent was within its right to request the applicant to undergo a s. 44 to determine whether the applicant’s injuries were in the MIG as part of the normal adjusting of the file. I have reviewed the denial letter at Tab 5 of the respondent’s submission which was in accordance with s. 38(8) and (10) of the Schedule. I find that denying a treatment plan while pending a s. 44 assessment, even if the applicant has pre-existing condition, does not in itself constitute an unreasonably withheld or delayed payment of benefits.
17I therefore find that the applicant is not entitled to an award.
Is the applicant entitled to a $100.00 filing fee?
18As I have indicated in Paragraph [11] above, a bulk of the applicant’s submissions were focused on this issue which was not part of the issues in dispute proceeding to a hearing outlined in Adjudicator Gosio’s Order. The applicant argued that he was entitled to the return of this fee as part of his request for costs. Although this issue was not mentioned in the case conference order leading to this hearing, since the parties have addressed the issue in their submissions, I shall consider it in my decision.
19The applicant argues that the insurer acted unreasonably in the proceeding because a resolution was only reached after incurring the cost of this application and after legal representation was retained to appear before the Tribunal. The respondent argues that the applicant submitted an application before the respondent had finished adjudication of the OCF-18.
20Section 17.1 (1) of the Statutory Powers and Procedures Act provides that a tribunal may, in the circumstances set out in the tribunal’s rules, order costs. Rule 19.1 of the Tribunal’s Rules provides that where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith, that party may request costs from the Tribunal. However, Rule 19.4 provides that a submission on costs shall set out the reasons for the request and particulars of the alleged unreasonable, frivolous, vexatious or in bad faith conduct.
21When benefits are denied, the avenue for the applicant to contest the denial starts with an application to the Tribunal until the matter is resolved either at case conference or hearing. An application fee is paid before the Tribunal can process the application.
22I have considered the parties’ submissions and I find no basis for awarding costs in this case. The applicant used the process for resolving disputes and as I have noted above, requires the payment of a filing fee. There is also Tribunal case law that states the costs of the proceeding are not recoverable under Rule 19.3 There must be evidence of unreasonable, frivolous, vexatious, or bad faith behaviour in the proceeding. I see no such conduct here.
23On that basis, I decline to order costs for the application filing fee of $100.00.
ORDER
24For reasons outlined above, I order that
i. The applicant is not entitled to an award under O. Reg. 664
ii. The applicant is not entitled to costs under Rule 19.1.
Released: May 19, 2020
__________________________
Aggrey Msosa
Adjudicator
Footnotes
- Tab 3 of the applicant’s submissions
- Para 27 of respondent’s submission
- 16-000075 v Wawanesa Mutual Insurance Company, 2017 CanLII 35323 (ON LAT), http://canlii.ca/t/h465q; 16-004565 v Aviva Insurance Company, 2017 CanLII 81649 (ON LAT), http://canlii.ca/t/hp3pc; 16-003555 v Travellers Insurance Company, 2017 CanLII 39739 (ON LAT), http://canlii.ca/t/h4hlw.