Citation: M.J. vs. Dufferin Mutual Insurance Company, 2020 ONLAT 19-006241/AABS, 19-006243/AABS, 19-005765/AABS

Released Date: 09/23/2020

Tribunal File Numbers: 19-006241/AABS 19-006243/AABS 19-005765/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:

M.J.

Applicant

and

Dufferin Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Gordon W. Harris

For the Respondent:

Jessica L. Kuredjian

HEARD:

Via written submissions

OVERVIEW

1M.J. was injured in an accident on March 1, 2017, and sought various benefits from the respondent, Dufferin Mutual, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). While these three combined files once involved the Minor Injury Guideline (“MIG”), claims for income replacement benefits (“IRB”), treatment for physiotherapy and several assessments, the parties agree that there are no longer any substantive issues in dispute for this written hearing.

2Instead, what remains is a dispute over whether M.J. is entitled to an award under s. 10 of O. Reg. 664 due to Dufferin Mutual’s unreasonable withholding and delay in removing her from the MIG and paying her the various benefits described above.

3The parties’ have conflicting views on Dufferin Mutual’s conduct. In pursuing this claim, M.J. offers a number of assertions and examples, addressed below, to demonstrate how Dufferin Mutual, in her view, unreasonably kept her in the MIG and unreasonably denied or withheld the payment of a physiatry assessment, an occupational therapy assessment, a psychological assessment and her physiotherapy treatment. In response, Dufferin Mutual submits that a s. 10 award is not appropriate because all of the benefits in dispute were denied in accordance with the Schedule because it believed that M.J.’s injuries fell within the MIG based on the objective medical evidence in its possession and that the delay was due to M.J. frustrating the assessment process.

ISSUE IN DISPUTE

4The following is the sole issue in dispute according to the Case Conference Order dated December 12, 2019:

a. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

result

5I find M.J. is entitled to a s. 10 award under O. Reg. 664 in the amount of $400.00, with applicable interest.

ANALYSIS

Section 10 Award

6Amongst other alleged procedural and adjusting deficiencies, M.J. seeks an award under s. 10 of O. Reg. 664 due to Dufferin Mutual’s unreasonable withholding and delaying of the payment of benefits. 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 unreasonably withheld or delayed the payments. M.J. requests an award totalling $4,108.59—representing 50% of the four delayed treatment plans—plus applicable interest.

7To this end, M.J. offers numerous complaints regarding Dufferin Mutual’s conduct across the three related files. She alleges the following: i) refusing to provide questions to be answered at assessments; ii) ignoring the terms consented to by M.J. for her attendance at s. 44 assessments; iii) ignoring Dr. Ballard’s findings that an OCF-18 was reasonable and necessary; iv) communicating with non-parties without consent or copying counsel, as stipulated; v) seeking surveillance very early in a first-party claim without a clearly shown reason; vi) witness-shopping when an assessor refused to rely on surveillance as sought; vii) improperly relying on s. 57 to direct M.J.’s treatment over the advice of her chosen treatment providers, and threatening denial of benefits without compliance; viii) improperly claiming that a s. 25 assessment is a “duplication” of an insurer’s s. 44 assessment, and denying the s. 25 physiatry and psychological assessments on that basis, both of which were incurred; ix) hampering the ability of counsel to advise M.J. with respect to her no-fault claim; x) failing to properly communicate decisions made on the file to the insured; xi) improperly refusing to issue IRB funding until LTD is applied for; xii) failing to respond properly or at all to letters requiring a professional response; xiii) failing to approve treatment approved by Dr. Ballard, its s. 44 assessor; and, xiv) failing to provide valid or other medical reasons for denials.

8I find a minor award is appropriate. I found the rhetoric used by M.J. in her submissions and her characterization of Dufferin Mutual’s behaviour in adjusting this file to be rather dramatic on the facts and given the scope of the benefits in dispute (as not everything is Kafka-esque or a “red herring being dragged across the tracks”, etc.), but I find some reality in her assertions. The language of s. 10 provides for an award where an insurer unreasonably withholds or delays the payment of benefits. I agree with M.J. that it is telling that Dufferin Mutual only agreed to fund all of the benefits in dispute at the case conference after she filed her application at the Tribunal. While Dufferin Mutual is entitled to rely on its reasons for denials, it is the overall delay in eventually providing payment for these benefits, and the resulting prejudice to M.J., that triggers an award. Indeed, in its analysis on each of the treatment plans in dispute, Dufferin Mutual misleadingly states that the treatment plans “were not improperly withheld or denied” but the language of s. 10 focuses on unreasonable withholding or delay. While M.J. takes issue with the denials as well, s. 10 concerns unreasonable or stubborn adjusting that causes delay, and I agree that there was unreasonable delay in eventually conceding payment to M.J., despite Dufferin Mutual framing the issue as a dispute over whether benefits were properly denied.

9To be clear, I would not give effect to the majority of M.J.’s assertions supporting the s. 10 award. I find most of the deficiencies—primarily those related to the confusion surrounding competing consent forms that led first to the delay in attending the MIG assessment and which later compounded the overall delay for other benefits; M.J. relying on the FSCO decision in Luther v. Economical¹ which is not authoritative; counsel’s supposed inability to advise M.J.; or M.J. incurring the in-home occupational therapy assessment during the time she was being treated in the MIG, which is prohibited by the Schedule—cannot be placed at Dufferin Mutual’s feet. It is well-settled that insurers are not held to a standard of perfection, but reasonableness, and I agree with Dufferin Mutual that in the early stages of this file, there was limited medical evidence to support M.J.’s claims. Further, I find evidence in the rather voluminous correspondence between the parties that Dufferin Mutual was frustrated by M.J.’s adversarial approach and unreasonable attempts to control how Dufferin Mutual was conducting its assessments. In my view, this also contributed to the delay.

10However, I agree with M.J. on two grounds. First, I find the Schedule is clear: s. 25(1)2 requires the insurer to pay for assessment expenses incurred by or on behalf of an insured person. Meanwhile, s. 44 is for the purpose of assisting the insurer to determine whether the insured is or continues to be entitled to a benefit. I agree that the s. 25 physiatry and psychological assessments sought by M.J. were not “duplications of services” of assessments obtained by Dufferin Mutual under s. 44. I agree that this was not a valid medical or other basis for denial, and it is clear that M.J. was not provided with authority to support Dufferin Mutual’s “duplication” position that underpinned its denial when asked. While Dufferin Mutual submits that the assessments were denied because they were not reasonable and necessary and not because they were duplications (despite later approving both at the case conference on a “good faith basis” as a result of its assessors’ findings from the IRB assessment), I find the evidence suggests otherwise. These denials clearly led to a delay in payment for the assessments, both of which were incurred by M.J.

11Further, I agree with M.J. that Dufferin Mutual had an obligation to reconsider its earlier benefit denials once it made the determination to remove her from the MIG but did not. This lack of reconsideration was not in line with its duty to continually adjust the file in good faith and led to further delay in the payment of incurred benefits, which forced M.J. to submit her application to the Tribunal, where Dufferin Mutual eventually conceded payment for the incurred benefits it should have revisited over one year prior.

12M.J. alleges that Dufferin Mutual engaged in unreasonable behaviour in withholding or delaying benefits, which has been “excessive, imprudent, stubborn, inflexible, unyielding and immoderate” and worthy of deterrence, criteria that I very recently addressed on reconsideration.² With the exception of stubbornness, as identified above in paras 10-11, I find limited evidence to suggest Dufferin Mutual’s conduct rose to a level that would attract a significant 50% award, as requested. I would not even entertain the 10% award that was ordered in Plowright v. Wellington,³ where the conduct was egregious and delay could not be attributed to the insured at all, which is not the case here. Instead, I find a nominal award totalling $400 is appropriate on the evidence, representing a bit less than 5% of the total benefits claimed, in order to remind Dufferin Mutual of its continuing duty to adjust the file in good faith and provide valid reasons when denying a claim.

CONCLUSION

13M.J. is entitled to a s. 10 award under O. Reg. 664 in the amount of $400.00, with applicable interest.

Footnotes

1. 1Luther v. Economical Mutual Insurance Co., 2010 Carswell 8237 (FSCO A10-003773).
2. 2See, S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).
3. 3Plowright v. Wellington Insurance Co., 1993 OIC File No.: A-003985 (FSCO).