Citation: Z.A. vs. Certas Home and Auto Insurance Company, 2020 ONLAT 19-001119/AABS

Released Date: 07/03/2020

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:

Z.A.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Paul D. A. Deluca

For the Respondent:

Joanna L. Cox

HEARD:

Via written submissions

OVERVIEW

1Z.A. was injured in an accident on September 30, 3017, and sought various benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Certas denied the benefits and Z.A. submitted an application to the Tribunal for resolution of the dispute.

2At the case conference, eight of the issues in dispute were withdrawn. A written hearing was scheduled to decide the remaining issues in dispute between the parties, being $395.50 in transportation expenses which Certas claims is not payable under the Schedule and Z.A.’s claim for an award under s. 10 of O. Reg. 664 due to Certas’ unreasonable withholding and delay in paying benefits.

ISSUES IN DISPUTE

3The following issues remain in dispute:

i. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?

ii. Is the applicant entitled to transportation costs in the amount of $395.50 for attending a psychological assessment recommended by Meditecs Independent Medical Examinations as stated in a treatment plan submitted March 7, 2018 and denied by the respondent January 29, 2019?

RESULT

4Z.A. is not entitled to payment for the transportation expenses or a s. 10 award.

ANALYSIS

Transportation Costs

5It is undisputed that s. 15(2)(c) of the Schedule states that an insurer is not liable for transportation expenses “other than authorized transportation expenses.” Section 3(1)(a) provides that “authorized expenses” are calculated by applying the rates set out in the Transportation Expenses Guidelines published by FSCO in The Ontario Gazette. Section 3(1)(b) further provides that unless the insured is catastrophically impaired, transportation expenses are only payable after the first 50 kilometres of a trip. The parties agree that the applicable Guideline for Z.A.’s date of loss is No. 04/16.

6Other than stating that the “legislation is clear” and citing to Tribunal case 17-002703/AABS, Z.A. did not provide particulars to demonstrate why these transportation expenses should not be subject to the 50-kilometre deductible. Indeed, Z.A. did not include the OCF-18 itself, did not provide her home address and did not provide the address of the clinic for an easy calculation. There was no invoice provided by Z.A. Further, while 17-002703/AABS correctly stated the test, the Tribunal did not actually order payment for transportation expenses outside of the 50-killometre deductible, so I find the case to be easily distinguishable.

7In any event, on review of the OCF-18 provided by Certas that corresponds to this claim, I agree that it indicates that transportation will be provided by the clinic, but no particulars are provided. Certas’ denial letter clearly states that it is not liable to pay for unauthorized transportation expenses under s. 15. The OCF-18 and the OCF-21 invoice for the assessment provide a facility address of [The Street East], in Kitchener. On the various documents provided, it appears that Z.A.’s confirmed home address is [The Crescent], also in Kitchener. The longest one-way route between these two addresses is only 8.4 kilometres. Round trip, the total transportation falls well short of 50 kilometres. Therefore, as Z.A. is not catastrophically impaired, I agree with Certas that the 50-kilometre deductible under s. 3(1)(b) applies and transportation expenses, even if they were reasonable and necessary, are not payable to Z.A. for this assessment.

Award under s. 10

8Z.A. also claims an award under s. 10 of O. Reg. 664 due to Certas unreasonable withholding and delaying the full payment of her income replacement benefits (“IRBs”). Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments.

9Z.A. submits that her IRBs were terminated in January 2019 following three s. 44 examinations but Certas then approved the IRBs following the case conference in June 2019. Against these facts, Z.A. submits that Certas was in possession of medical evidence and OCF-18s prior to the termination that indicated she met the test for IRBs based on her shoulder injury, pain and somatic symptom disorder. Z.A. asserts that Certas only approved the IRBs and treatment plans when it became clear that a resolution could not be made. On this basis, Z.A. asks for an award of 50% plus 2% interest for all of the benefits in dispute in her application.

10In response, Certas submits that it made determinations on Z.A.’s IRB claim and the various treatment plans based on the medical and other evidence that was available at the relevant times. It submits that it has received differing medical opinions regarding Z.A.’s injuries, duration and degree of impairment, and appropriate treatment, both from a psychological and physical standpoint. On this basis, it submits that it is well-settled that preferring s. 44 opinions over other opinions or getting a determination incorrect is not a basis for an award. Further, it submits that preferring its s. 44 opinions over Z.A.’s doctors’ opinions was not unreasonable in this claim. Finally, Certas argues that its subsequent determination to approve all but two issues following a case conference is not grounds for an award under s. 10 given the scope of a case conference as set out in Rule 14.2 of the Tribunal’s Common Rules of Practice and Procedure.

11I find an award is not appropriate. As Certas points out, an insurer can make the wrong conclusion without having acted unreasonably. I find all of Certas’ denials were based on properly scheduled assessments. Certas also provided the Tribunal with a breakdown of how it adjusted every one of Z.A.’s claims, which I found to be a helpful guide. On review, I find there is no compelling evidence that Certas acted unreasonably in handling the claim or in a manner that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Indeed, I find every one of Certas’ nine responses were proper, timely and provided Z.A. with adequate reasons. Further, while not strictly required, it does not appear that Z.A. even requested Certas’ adjuster’s log notes in order to prove that there was internal bad faith decision-making.

12More problematic for Z.A. is the fact that the medical evidence she relies on is quite stale, as her most recent note is from August 2018 where Certas terminated the IRB in January 2019 following the assessments. The other treatment plans initially listed in the application were all denied based on s. 44 assessments. The most recent evidence is Dr. Wilderman’s August 2019 report, but that assessment was completed after the case conference where the issues in dispute were withdrawn. Other than disagreeing with Certas’ position on entitlement to benefits—which it is entitled to rely on—Z.A. has not provided the Tribunal with sufficient evidence to substantiate an award under s. 10. Accordingly, I decline to order an award.

CONCLUSION

13Z.A. is not entitled to payment for transportation expenses or a s. 10 award.