Released Date: 10/01/2020
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:
E.Z.
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melody Maleki-Yazdi, Adjudicator
APPEARANCES:
For the Applicant:
Cary N. Schneider, Counsel
For the Respondent:
Melanie Malach, Counsel
Court Reporter:
[A.K.]
HEARD:
By teleconference and in writing: May 13, 2020
OVERVIEW
1E.Z. (“the applicant”) was involved in an automobile accident on December 28, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”). He was denied benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2The applicant commenced the application to dispute the denial of income replacement benefits (“IRBs”). The IRBs were eventually paid from January 4, 2019 (one week post the date of loss) until August 1, 2019, including interest.
3The sole issue in dispute is whether the applicant is entitled to an award pursuant to Ontario Regulation 664. The applicant seeks an award for 50% of the unreasonably withheld or delayed payment together with interest at 2% per month compounded monthly from January 4, 2019 until August 1, 2019.
4During the teleconference hearing, I heard evidence from Mr. Kevin Weber, an accident benefits claims adjuster.
ISSUE
5The following issue is in dispute for this hearing:
- Is the applicant entitled to an award pursuant to Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
RESULT
6I find that the applicant is entitled to a 15% award on the IRBs paid from January 4, 2019 until April 5, 2019, together with interest at a rate of 2% per month, compounded monthly.
ANALYSIS
Breach of Order
7The parties agreed to proceed by way of a combination hearing and agreed to page limits on the written submissions. The respondent submits that the applicant failed to adhere to the page limit by submitting initial submissions that were 12 pages with 1.5 line spacing, rather than 10 pages with double spacing as set out in the Order. The respondent has asked me to disregard the entirety of applicant’s initial submissions, or at least, the last three pages of the submissions on account of his failure to comply with the Order.
8The applicant submits that he is entitled to a total of 15 pages of submissions between his initial submissions and the reply submissions. The applicant provided only three pages of reply submissions, double-spaced, rather than the five pages allotted to him for those submissions.
9I am allowing the applicant’s initial submissions to be considered in their entirely because the respondent did not provide any submissions regarding how it has been prejudiced by the applicant’s actions.
Is the applicant entitled to an award under Regulation 664?
10Pursuant to s. 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.
11On the facts and evidence before the Tribunal, I find that an award is warranted.
12The applicant was paid IRBs from January 4, 2019 (one week post the date of loss) until August 1, 2019, including interest. At his Examination Under Oath (“EUO”) on December 6, 2019, the applicant advised that he returned to work in August of 2019. He seeks an award of 50% for the unreasonably withheld or delayed payment together with interest at 2% per month compounded monthly for this entire time frame.
13The applicant submits that he has been treated in an adversarial manner from the outset of his claim and ongoing. The applicant advances numerous arguments for why an award is warranted. I have not addressed all the arguments the applicant has raised. The arguments I have addressed are the only ones that, in my view, raise genuine issues about whether an award is warranted.
14The respondent submits that it has acted reasonably and in good faith. It also submits that all benefits, including any interest owing to the applicant, have been paid in full.
Timeline of events
15The applicant submits that, once the respondent agreed to commence paying IRBs, it refused to pay the IRBs retroactively to January 4, 2019 and instead only agreed to pay them from the date it received the OCF-1, which was on April 5, 2019.
16The respondent submits that, pursuant to s. 36(3) of the Schedule, the applicant is not entitled to a specified benefit for any period before it received both the completed Application for Accident Benefits (“OCF-1”) and Disability Certificate (“OCF-3”). The respondent submits that it received the OCF-3 on March 15, 2019 and the OCF-1 later on April 5, 2019.
17The adjuster’s log notes indicate that, beginning on January 3, 2019 (approximately one week following the accident), the respondent’s Special Investigations Unit (“SIU”) was assigned to this claim and that it was being investigated. The log notes dated January 22, 2019 indicate that the SIU investigator met with the applicant the night prior to take his statement. The log notes dated January 31, 2019, indicate that the statement was too large to upload and, instead, was saved on the system’s drive.
18The adjuster’s log notes indicate that the respondent’s accident benefits department opened the applicant’s claim on February 15, 2019 (approximately 1.5 months following the accident), when the respondent received a phone call from a treatment centre advising that the applicant was seeking treatment. The applicant’s initial adjuster, Ms. Marsha Remy, contacted the applicant on February 19, 2019 and again on March 4, 2019. The notes indicate that she first spoke with the applicant on March 4, 2019, when she advised him that he needed to submit an OCF-1 and an OCF-3 if he wished to apply for a specified benefit. Ms. Remy offered to come to the applicant’s house to help him fill out the application forms, and the applicant advised that he would try to complete the forms on his own and would let her know if he needed any help. The respondent phoned the applicant again on March 11, 2019, and at that time, the applicant told the respondent that he was working on both the OCF-1 and OCF-3 forms.
19On March 14, 2019, the applicant’s claim was transferred to Mr. Weber, the new adjuster on the file. On March 14, 2019, Mr. Weber sent a letter to the applicant advising that he had not received the applicant’s OCF-1. On March 15, 2019, the respondent received the OCF-3 from Medi Life Care, a treatment centre. On April 2, 2019, Mr. Weber sent another letter to the applicant indicating that the respondent had not received the OCF-1, and that Mr. Weber had contacted the treatment centre to see if they had an OCF-1 and was awaiting a response. Mr. Weber testified that he recalls calling the clinic and did not appear to have documented the call in the log notes.
20On April 5, 2019, the applicant’s counsel then advised the respondent that his firm had been retained – until then, the applicant had been self-represented – and enclosed a number of documents including the OCF-1. During this correspondence, the respondent submits that the applicant’s counsel included a letter written to the applicant’s family physician requesting an invoice for the cost of clinical notes and records and that, once received, the invoice would be sent to the respondent. The respondent submits that the invoice was never received.
21On April 18, 2019, Mr. Weber sent a letter to the applicant indicating that the respondent did not have sufficient information to calculate the IRB and needed the Employer’s Confirmation Form (“OCF-2”) to be completed by the applicant’s former employer and copies of the applicant’s Employment Insurance (“EI”) program pay stubs for the last 52 weeks. The respondent asked for this information to be provided by May 3, 2019. The applicant submits that, prior to this date, the respondent never told him that it needed this information.
22The adjuster’s log notes dated April 24, 2019, indicate that Mr. Weber called and left a message for the applicant’s counsel requesting a statement to address the IRB, priority and late reporting.
23On May 6, 2019, the applicant’s counsel sent an email to Mr. Weber attaching an OCF-2 and a Record of Employment. On May 7, 2019, the applicant’s counsel sent an email to Mr. Weber attaching a payment summary from the EI program.
24On May 21, 2019, the applicant’s counsel sent Mr. Weber an email indicating that his telephone calls had gone unanswered and that 14 days had passed since the respondent received the information it required to calculate and pay the IRB, and that the benefit remained unpaid. On that same date, the respondent paid the IRBs commencing on April 5, 2019. The respondent submits that Mr. Weber felt pressured by the applicant’s counsel and initiated the payment without the additional documentation that he had requested from the applicant.
25The respondent submits that, despite being pressured to commence paying IRBs, Mr. Weber did not agree to pay them from January 4, 2019 because he still needed an explanation for why the OCF-1 was not submitted until April 5, 2019. Mr. Weber testified that, when he spoke with the applicant’s counsel on May 21, 2019, he was verbally told that an explanation would be provided in writing about why the OCF-1 was submitted late, and that this explanation was not provided.
26On May 30, 2019, Mr. Weber sent a letter to the applicant indicating that an authorization form was being provided for the applicant to sign so that it could then directly request the family physician’s clinical notes and records. The respondent submits that this document was never signed. During Mr. Weber’s testimony, the applicant submitted that he was not provided with an authorization form along with the letter and Mr. Weber replied that he had provided authorization forms in the past.
27On June 17, 2019, Mr. Weber sent a letter to the applicant to advise that the respondent was arranging an EUO. The respondent’s rationale for scheduling an EUO was to obtain information regarding the following: entitlement to the IRB; the details concerning the accident and questions about the date of loss versus the date the claim was reported.
28On July 9, 2019, Mr. Weber sent a letter to the applicant requesting the clinical notes and records of the family physician pursuant to s. 33 of the Schedule. On July 29, 2019, the respondent placed the applicant in non-compliance with its s. 33 request and indicated that IRBs would not be paid following July 24, 2019. The respondent submits that, to date, it has not received any clinical notes and records from the family physician.
29The EUO took place on December 6, 2019. The respondent submits that it was available to conduct the EUO earlier than December of 2019, but that it occurred then as that is when the applicant’s counsel was available
Analysis
30The respondent submits that it was within its authority pursuant to s. 33 of the Schedule to request further information for the applicant’s delay in reporting his injuries and in submitting an OCF-1, as well as information pertaining to his medical status and employment status. The respondent submits that multiple requests were made of the applicant for his family physician’s clinical notes and records. The respondent submits it required a written explanation for the applicant’s delay in submitting the required documents and that the explanation was not provided until the EUO on December 6, 2019.
31The applicant submits that he was self-represented until April 5, 2019 and the respondent was aware that the applicant was self-represented because it had discussions with him regarding his difficulty completing the required forms. In addition, the applicant submits that the respondent knew that he was trying to get information from a third-party employer to complete the OCF-1 and a medical professional to complete the OCF-3. The applicant submits that the respondent cannot hold him in non-compliance when the records are not in his possession and when he has requested them. Furthermore, the applicant submits that he was forced to go to an EUO to obtain information about why he was delayed in completing the forms and that, at the EUO, the respondent received the same information that he provided when he was self-represented.
32I find that the respondent unreasonably delayed the payment of IRBs when, on May 21, 2019, it initially refused to pay the IRBs retroactively to January 4, 2019 and instead only agreed to pay from the date it received the OCF-1, which was on April 5, 2019. The respondent’s rationale for not paying IRBs to January 4, 2019 was because it wanted the applicant to provide a written explanation for his delay in applying for accident benefits following the accident. On December 9, 2019, the respondent eventually paid the IRBs retroactively to January 4, 2019. As noted above, the respondent submits that it was only at the EUO that it received an explanation for the applicant’s delay in submitting the required documents. The transcript from the EUO indicates that the applicant did not submit his OCF-1 until April 5, 2019 because he was trying to obtain various information from his prior employer in order to fill in the employment section of the form.
33I find that pursuant to s. 10 of Ontario Regulation 664, the respondent unreasonably delayed the payment from January 4, 2019 until April 5, 2019.
34The accident occurred on December 28, 2018, and the applicant reported his injuries to the respondent approximately 1.5 months later, on February 15, 2019. However, before this time, the evidence indicates that the applicant was cooperative with the respondent and provided a written statement to the respondent’s SIU department on January 21, 2019, when it was requested of him. During his testimony, Mr. Weber stated that the SIU is independent from the accident benefits and bodily injury departments, and that the SIU was properly investigating the accident. Mr. Weber was not able to confirm whether a written statement was obtained and stated that it might be in the SIU file. The respondent submits that Mr. Weber does not have direct access to the SIU file.
35After the applicant reported his injuries to the respondent, the parties had regular contact about the status of the forms that the applicant was required to complete. On February 19, 2019, the adjuster’s log notes include a notation that the applicant did not have a legal representative. Therefore, the respondent knew within a few days of the applicant’s initial reporting of his injuries that he was self-represented. This is also shown when on March 4, 2019, Ms. Remy offers to help the applicant with completing the application forms. Mr. Weber testified that it is normal practice for the respondent to attend a self-represented applicant’s home to help with the completion of forms. On March 11, 2019, the respondent was aware that the applicant was in the process of completing the forms. On March 15, 2019, the respondent received the OCF-3. On April 2, 2019, Mr. Weber told the applicant that he had contacted the treatment centre to see if they had an OCF-1 and was awaiting a response. On April 5, 2019, the respondent received the OCF-1.
36I find that the respondent was aware of why the applicant was experiencing delays in submitting the forms required of him as the respondent’s accident benefits department had been in regular contact with him from February 15, 2019 and onwards. Even prior to that, beginning on January 3, 2019, the SIU began its investigation of the accident and the applicant provided a written statement to the SIU on January 21, 2019. I find that the respondent’s accident benefits department could have accessed the written statement taken of the applicant on January 21, 2019, which was less than one month after the accident occurred, in order to determine the information that was gathered from the applicant at that early period.
37I am not awarding a full award of 50% because that would require the most egregious behaviour, which was not demonstrated in this case, and the award is therefore reduced to 15%. The respondent has continually adjusted the file and has approved the IRBs for the period that had previously been in dispute, including with interest. Furthermore, I find that the respondent acted favourably towards the applicant when it paid IRBs to him even though he did not provide the respondent with the s. 33 request for his family physician’s clinical notes and records, although I note that he had written to his family physician requesting an invoice for the cost of these documents. The evidence indicates that the respondent has not received this information to date.
38In conclusion, the applicant is entitled to a 15% award on the IRBs paid from January 4, 2019 until April 5, 2019, together with interest at a rate of 2% per month, compounded monthly.
CONCLUSION
39I find that the applicant is entitled to a 15% award on the IRBs paid from January 4, 2019 until April 5, 2019, together with interest at a rate of 2% per month, compounded monthly.
Released: October 1, 2020
____________________
Melody Maleki-Yazdi
Adjudicator