Released Date: 09/30/2020
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:
K.L.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
D. Joel Dick, Counsel
For the Respondent:
Michael McChesney, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1[K.L.] (“applicant”) was involved in an automobile accident on January 20, 2016 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2The applicant sought medical benefits from Aviva Insurance Company of Canada (“respondent”) on August 2017 and received correspondence from the respondent which the applicant interpreted as a denial.
3The applicant disagreed with the respondent’s alleged denial and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) on April 9, 2019.
ISSUES
4The issue to be decided is:
i. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5I find that the applicant is not entitled to an award.
LAW
6Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.
7The onus is on the applicant to prove an award should be granted on a balance of probabilities.
ANALYSIS
8The applicant submits that the respondent’s communications to her were contradictory and confusing and that she was misled to understand that the physiotherapy treatment plan proposed in 2017 was rejected. As a result, the applicant submits that she is entitled to an award because there was no prompt payment of the proposed treatment plan. The applicant further submits that the respondent defended the Tribunal application when it was filed in 2019 and did not disabuse the applicant of her mistaken belief that the treatment plan was denied by clearly communicating its approval of the treatment plan until September 25, 2019. The applicant argues that the confusing communication from the respondent led the applicant to reasonably conclude that the insurer had denied the treatment plan and led to an unreasonable delay in the availability of benefits to which the applicant is entitled.
9The respondent submits that an award is not warranted.
Is the Applicant Entitled to a Special Award?
10I find that there was no payment unreasonably withheld or delayed by the respondent and there is no basis for a special award for the following reasons.
11There is nothing ambiguous, unclear or confusing in the respondent’s communications to the applicant or in the respondent requesting that the applicant attend an insurer’s medical examination (“IE”) prior to determining whether the treatment plan was reasonable or necessary.
12The explanation of benefits (“EOB”) dated December 19, 2017 contains a statement confirming that the respondent’s IE assessor Dr. Jaroszynski concluded that the proposed treatment plan is not reasonable and necessary. The EOB continues, “However, as per section 38(13) of the Statutory Accident Benefits Schedule (SABS) we have approved the above noted Treatment and Assessment Plan (OCF-18) in full as the insurer’s examination report was not provided to you within 10 business days.” The EOB enclosed an information sheet that explained the process involved in bringing an application to the Tribunal and was copied to the applicant’s counsel.
13The respondent wrote to the applicant on January 29, 2018 informing her that the respondent’s IE assessor had prepared an addendum report in which Dr. Jaroszynski concluded that his opinion remains unchanged that the proposed treatment plan is not reasonable and necessary. The addendum report was enclosed together with the information sheet sent previously explaining the process involved in bringing an application to the Tribunal.
14I find that these communications are not contradictory and confusing as the applicant suggests but are clear and unambiguous statements. There are two separate topics being communicated to the applicant. Firstly, the medical opinions of Dr. Jaroszynski and secondly, the approval of the treatment plan by the respondent for legal reasons, despite Dr. Jaroszynski’s medical opinions. The EOB addresses both topics while the January 29, 2018 addresses only Dr. Jaroszynski’s addendum report.
15There is no reasonable basis on which these post-EOB communications could be misinterpreted as a denial of the proposed treatment plan. The December 2017 EOB confirms that the respondent has approved the proposed treatment plan. The January 2018 letter does not retract the approval or state otherwise.
16Contrary to the applicant’s submission, I find that the January 29, 2018 does not constitute a “second denial”. The January 29, 2018 letter forwarded to the applicant the addendum report of its IE assessor Dr. Jaroszynski “…in response to the concerns raised by your legal representative regarding the completed insurer’s examination dated December 19, 2017 and completed by Dr. Jaroszynski”. This letter is copied to the applicant’s counsel and the treatment provider. According to correspondence filed by the respondent, the treatment provider was also advised of the approval on HCAI.
17Having misinterpreted the communications from the respondent, the applicant did not apply to the Tribunal until some one-and-one-half years after the EOB was sent. These two actions of the applicant caused the greatest portion of delay.
18After the application was filed and the respondent took the position that the proposed treatment was not reasonable and necessary, some further six months elapsed before the respondent’s counsel notified the applicant’s counsel that the proposed treatment plan had previously been approved. While the applicant argues this further delay was caused by the respondent, I find that it should have been apparent to the applicant from reviewing the above correspondence that the respondent had approved the proposed treatment plan in 2017. This further six months’ delay was not significant given the one-and-one-half year delay which had already been caused by the applicant’s misinterpretation of communication and delay in filing an application to the Tribunal. The application to the Tribunal was unnecessary and any resulting further delay was also unnecessary. It was the applicant’s own misinterpretation of the respondent’s communication that led to a delay in payment, not the conduct of the respondent. Given that applicant’s counsel was copied with the 2017 EOB, the applicant’s counsel ought not to have needed the respondent’s counsel to inform him of the approval in the EOB.
19The applicant submits that one of the main objectives of insurance law, particularly automobile insurance is consumer protection, and cites several cases in support. This proposition, at least with regard to a first party insurer, is not in dispute. However, this proposition, does not relieve the applicant of the obligation to read clear communications from the respondent. The first party insurer is not required to check with an applicant to make sure its communication was correctly understood. The first party insurer should, however, communicate clearly in a manner that can be understood by an unsophisticated insured and I find the respondent did so here. I also find that, based on the above evidence, there has been no breach by the respondent of any duty to act in good faith or any unfair dealing as argued by the applicant.
20I find that the respondent has not unreasonably withheld or delayed payments to the applicant. As a result, there is no award.
ORDER
21For these reasons above, I find that the applicant is not entitled to an award.
Released: September 30, 2020
Avril A. Farlam
Vice Chair