Citation: Manoharan vs. Allstate Canada, 2021 ONLAT 19-010782/AABS
Released: January 21, 2021
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:
Selvankayi Manoharan
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Jono Schneider, Counsel
For the Respondent:
Diana Oliveira, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on February 20, 2017, and sought various benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Allstate denied or partially approved the benefits based on the applicant’s standing in the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
2At the case conference, a number of issues were identified as being in dispute. Allstate agreed to pay certain benefits, including the income replacement benefit. For the purposes of this written hearing, what remains in dispute is one treatment plan for a physiatry assessment and several interest claims on unpaid portions of partially approved treatment plans or claims for interest on previously approved treatment plans under s. 51. Further, the applicant seeks an award under s. 10 of O. Reg. 664, arguing that Allstate’s denials resulted in the unreasonable withholding and delay of the payment of her benefits.
ISSUES IN DISPUTE
3According to the Case Conference Order and a subsequent motion by the applicant, the following issues are in dispute:
(i) Is the applicant entitled to receive a medical benefit in the amount of $2,968.32, representing an unpaid balance remaining of the initial claim for $5,412.47, for psychological services recommended by Dr. Pillai in treatment plan submitted on February 8, 2018, denied by the respondent on August 14, 2018?
(ii) Is the applicant entitled to payments for the cost of an examination in the amount of $2,486.00 for a physiatry assessment recommended by Dr. Wong in a treatment plan submitted on August 29, 2018, and denied by the respondent on September 7, 2018?
(iii) Is the applicant entitled to payment for the cost of an examination in the amount of $286.00, representing an unpaid balance remaining of the initial claim for $2,486.00, for a rheumatology assessment recommended by Dr. Cohen in a treatment plan submitted on August 29, 2018, and denied by the respondent on September 7, 2018?
(iv) Is the applicant entitled to payment for the cost of an examination in the amount of $286.00, representing an unpaid balance remaining of the initial claim for $2,486.00, for a psychology assessment recommended by Dr. Vitelli in a treatment plan submitted on August 29, 2018, and denied by the respondent on September 7, 2018?
(v) Is the applicant entitled to interest on any overdue payment of benefits including, but not limited to, interest on the following amounts?
a. $2,866.62 for physiotherapy services recommended by Fairview Wellness as set out in a treatment plan submitted on August 31, 2017, and denied by the respondent on November 8, 2017?
b. $2,735.11 for physiotherapy services recommended by Fairview Wellness as set out in a treatment plan submitted on October 31, 2017, and denied by the respondent on November 24, 2017?
c. $2,566.32 for physiotherapy services recommended by Fairview Wellness as set out in a treatment plan submitted on January 11, 2018, and denied by the respondent on February 5, 2018?
(vi) Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits (including an income replacement benefit)?
RESULT
4The applicant is entitled to interest on the unpaid balance of psychological treatment that was incurred under issue (i).
5The applicant is entitled to payment for the physiatry assessment as it is reasonable and necessary under issue (ii).
6The applicant is entitled to interest on incurred amounts for issues (v)(a-c) pursuant to s. 51(4).
7The applicant is entitled to a s. 10 award in the amount of $1,500, plus 2% interest per month compounded monthly, due to Allstate’s unreasonable withholding and delay of the payment of benefits under issue (vi).
8The remaining issues were resolved.
ANALYSIS
9In this dispute, there are three treatment plans for physical therapy from Fairview Wellness Centre that were denied by Allstate, as well as psychological counselling, and three assessments for physiatry, rheumatology and psychology.
Issues (v) a., b., and c. – Interest on Physiotherapy
10As I understand it, the three treatment plans for physical therapy were denied at separate times based on Allstate’s position that the applicant was within the MIG. The applicant asserts that Allstate reversed the denials to approvals on May 16, 2018 but that it has since refused to pay interest under s. 51 despite the fact the “plans were submitted on September 5, 2017 (265 days earlier), November 15, 2017 (194 days earlier) and January 24, 2018 (124 days earlier).” The applicant submits that s. 51 of the Schedule is not optional and requests an order that Allstate pay interest on all overdue accounts that are the subject of litigation.
11In response, Allstate contends that the three OCF-18s for physical therapy were approved after the applicant eventually attended properly scheduled s. 44 assessments (“IEs”). Allstate submits that the applicant had failed to attend an assessment arranged with Dr. McCutcheon, Psychologist, on March 7, 2018, which she was notified of on February 22, 2018. Allstate asserts that this assessment was rescheduled and arranged with Dr. Rubenstein, Psychologist, on April 11, 2018 and the applicant was notified on March 16, 2018. However, the applicant did not show up again. Against these facts, Allstate submits that, had the applicant attended to be examined sooner, the approvals would have occurred sooner, and the applicant failed to provide Allstate with any notice that she would not be attending the assessments. As a result, Allstate was charged a no-show fee, plus cancelation fees for transportation and translation services. Allstate acknowledges that the applicant has asked for interest on all overdue accounts. However, Allstate submits that it has requested all outstanding incurred accounts and to date has not received them.
12In submissions, the applicant asserts that “Allstate has refused to pay interest on all other matters without explanation” but I find the applicant did not offer a reply or a rebuttal to Allstate’s submission that the delay in approving the treatment plans for physiotherapy—and the reason why interest would therefore not be payable—was as a result of the applicant’s own failure to attend at two properly scheduled s. 44 IEs after the submission of the OCF-18s, before eventually attending at an examination with Dr. Day on May 1, 2018. A report from Dr. Day was issued on May 14, 2018 and Allstate approved the plans on May 16, 2018.
13Given that the applicant was in the MIG at the time the plans were submitted, and Allstate had concerns about gaps in the applicant’s medical and treatment records, Allstate was within its rights to schedule s. 44 IEs to assess whether treatment beyond the MIG was warranted. However, I agree with the applicant that interest applies when there is an overdue payment of a benefit and s. 51 does not allow an insurer to escape interest through the actions or inactions of an insured. Accordingly, the applicant is entitled to interest pursuant to s. 51(4) of the Schedule.
Issue (i) – Psychological Treatment
14The next dispute concerns psychological counselling services in the amount of $2,968.32, representing an unpaid balance remaining of the initial claim for $5,412.47, as recommended by Dr. Pillai in a treatment plan submitted on February 8, 2018, which was partially approved by Allstate on August 14, 2018. According to the applicant, the psychological counselling was changed from denied to approved on March 4, 2020, but Allstate again refused to pay interest under s. 51 despite approving the treatment 580 days later.
15In response, as best as I can tell, Allstate’s position on this narrow issue seems to be that it “has explained to applicant’s lawyer why [Allstate] were not paying interest on the remaining matters in which interest is being sought. It was also set out in the Response to the LAT Application and in [Allstate’s] Case Conference Brief.” While parties are directed by the Tribunal to reproduce their arguments for a written hearing, on review of Allstate’s Response, its position then was that its partial approval was based on a s. 44 IE, a position which it has maintained. On review of Allstate’s Case Conference Brief, it again cites its partial approval, the s. 44 IE report, the fact the applicant failed to attend two IEs and that it maintains its denial. Yet, Allstate then approved the unpaid balance on March 4, 2020. Allstate’s position on this issue remains unclear.
16I was not directed to the reason supporting why Allstate changed its position on this treatment plan from partially approved to fully approved, or why it took two years to do so, but it follows that interest would be payable under s. 51 for any payments overdue. I note that Allstate submits that it has asked for all outstanding incurred accounts from the applicant in an Explanation of Benefits (“EOB”) dated March 4, 2020 but, as of the date of its submissions, the accounts have not been provided to it. The box in the EOB pertaining to interest reads zero. Again, the applicant did not provide reply or rebuttal to speak to whether she has furnished Allstate with evidence of her outstanding incurred accounts in order to calculate the interest owing but, in any event,, I find interest under s. 51 is owing on the overdue payment of treatment.
Issues (iii) and (iv) – Rheumatology and Psychology Assessments
17Here, the applicant seeks two identical payments of $286.00, representing the unpaid balance of approved rheumatology and psychological assessments. The applicant submits that both assessments were originally denied and then approved on November 21, 2018 and that both were incurred in October 2018. The applicant asserts that Allstate communicated at the time that it is prepared to pay the Schedule maximum for the cost of the assessments, which she pointed out to Allstate is $2,486, not $2,200, in line with Tribunal jurisprudence. To date, the applicant submits that Allstate maintains the denial of the remaining balance, and presumably the unpaid HST, without explanation.
18In response, Allstate submits that these matters have been resolved, a position that the applicant did not rebut on reply. Accordingly, the Tribunal accepts that this issue is no longer in dispute and payment has been issued.
Issue (ii) – Physiatry Assessment
19In order to receive payment for this assessment, the parties agree that the applicant must demonstrate, on a balance of probabilities, that it is reasonable and necessary. That is, the applicant must show that the treatment goals, as identified, are reasonable; that these goals would be met to a reasonable degree; and that the overall costs of achieving these goals is reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.
20The applicant submits that Allstate has refused her claim and maintains the decision to refuse her request to fund a s. 25 assessment with a physiatrist, which was submitted on August 29, 2018 and denied September 7, 2018, but incurred by the applicant on October 15, 2018. The applicant asserts that Allstate communicated that the reason for the denial is it is a duplication of the insurer’s own physiatry assessment from a year earlier, an in-person assessment of October 13, 2017. Further, the applicant argues that at no point prior to her attending either of Allstate’s s. 44 assessments did Allstate communicate that by agreeing to attend the IEs, that she was prejudicing her own ability to submit for funding a s. 25 physiatry assessment.
21With regards to whether the assessment is reasonable and necessary, the applicant submits that the goal of the assessment was to have a specialist examine her to determine the next steps in her recovery. By the time the assessment was submitted, the applicant was about 1.5 years post-accident and had not been able to return to work. She asserts that the natural healing time for her injuries had lapsed, yet she had not yet reached maximum medical recovery and was trying to figure out if there is any diagnosis not yet contemplated and any treatment regimes not yet recommended. Dr. Wong, a specialist in chronic pain syndrome, was asked to review her medical file as well as meet her in-person to achieve this end at a cost in line with industry standards. Further, the applicant points to Allstate’s decision to conduct in-person physiatry IE’s on two separate occasions and its decision to have her examined for an in-person physiatrist IE weeks after it took the position that her request should not be paid for. She submits that s. 44 assessments can only be completed as often as reasonably necessary and, therefore, that this assessment is reasonable and necessary.
22In response, Allstate submits that the OCF-18 was denied as it was deemed to be a duplicate assessment of an IE Physiatry Assessment that was completed on October 13, 2017 and a Paper Review completed on July 17, 2018, which it submits did not result in any denial of benefits. Allstate submits that the applicant attributes the scheduling of a s. 44 Physiatry Assessment as connected to this OCF-18. However, Allstate submits that the s. 44 Physiatry Assessment was actually scheduled, initially as a paper review, to respond to the OCF-18 requesting a Rheumatology Assessment. Finally, Allstate submits that the applicant had been assessed by an OHIP funded Physiatrist in September 2017, that a denial does not have to be accompanied by an IE report to support the decision and that at no point before this hearing did the applicant take issue with the denial.
23I find the assessment plan to be reasonable and necessary, and payable as it was incurred. I find the applicant has demonstrated that the goal of the assessment—to have a specialist examine her at 1.5 years post-accident where she had not returned to work and not yet reached maximal medical recovery— to determine the next steps in her recovery was a reasonable and necessary one. I agree that Allstate’s reason for denial, that the assessment was a duplication of services, is somewhat tenuous on the facts, where it has approved subsequent treatment and assessments to aid in the applicant’s recovery. In this vein, I agree that it would be reasonable for the applicant to investigate whether there was any diagnosis not yet contemplated and any treatment regimes not yet recommended that previous assessments, her own and Allstate’s, had yet to uncover. Finally, I agree that the cost of the assessment was reasonable and in line with the cost of the other assessments approved by Allstate.
24Accordingly, I find the applicant is entitled to payment for the physiatry assessment, plus interest under s. 51, as it is reasonable and necessary.
Award under s. 10
25Finally, the applicant also claims an award under s. 10 of O. Reg. 664 due to Allstate’s unreasonably withholding and delaying the payment of benefits, including the income replacement benefit that is not in dispute here. 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.
26The applicant offers a number of reasons to support her request for an award totalling $15,000, plus 2% interest. The applicant attributes her 50% claim as follows: a) $12,764.55 for a combination of the IRB and interest owing and paid on March 4, 2020; b) interest owing on the late approvals of the three physical therapy treatment plans from Fairview Wellness Centre; c) $2,968.32, plus interest for the late denial of the psychological treatment plan in the amount of $5,412.47 ($2,444.15 was approved); d) $2,486, plus interest for the physiatrist assessment; and e) $572, plus interest for the combination of the outstanding owing for the psychologist and rheumatologist assessments.
27While the applicant offers some commentary on the state of adjusting practices generally, the specifics of her claim are tied primarily to her IRB claim. The applicant submits that the IRB was suspended for want of an x-ray but the x-ray was not recommended by Allstate’s own physiatrist previously and was recommended in a report that did not comment on the IRB; that the IRB was suspended for want of an x-ray that the family doctor did not agree was required; the IRB was suspended after Allstate “coerced” her to attend an in-person IE without notice and that assessment did not even comment on the IRB; and Allstate then acknowledged that it was suspending the IRB pursuant to s. 33 but also stated it recognized that s. 33 could not apply to the situation. Further, the applicant submits that Allstate kept changing the reason for suspending the benefit: first, it was for want of an x-ray, then for want of a CPP application (while in the same letter Allstate wrote that it did not think she will meet the post-104 test), and finally for want of proof of physiotherapy (while at the same time Allstate denied it).
28The applicant submits that: Allstate was aware that the family doctor did not think the x-ray was needed, but it maintained the suspension anyways; Allstate was aware that the applicant applied for CPP, but it maintained the suspension anyways; Allstate was aware the applicant was trying to get treatment which it was both denying at the time and then subsequently approving, yet it maintained the suspension anyways; Allstate has not released the results of a paper review to consider the IRB, yet maintained the suspension of the benefit and did send the report that ultimately followed (from another doctor) which did not comment on the IRB; Allstate refused to fund a physiatry assessment but then commissioned one a few weeks later, then denied her request as a duplication; and Allstate has refused to pay interest on all treatments without explanation.
29In response, Allstate concedes that while “there were instances where things did go wrong with the file” that these were “inadvertences” and do not meet the standard of “excessive, imprudent, stubborn, unyielding or immoderate”2 to justify a 50% award because there is no evidence that the applicant is an extremely vulnerable member of society, that she is catastrophically impaired, that the delay in treatment led to a deterioration in her condition or that the suspension of her IRB caused her harm. To this end, Allstate submits that: several s. 33 requests went unanswered and the applicant failed to attend s. 44 IEs, which delayed the payment of benefits, including the IRB; it has approved payment for several of the issues in dispute, with interest; Allstate had reason to question the credibility of the applicant based on her inconsistent MIG Discharge report from December 2019; there is no evidence of misconduct in the log notes; and allowing an award based on its without prejudice payment of benefits “would create a chilling industry result for early resolutions.”
30I find an award is appropriate. Indeed, it appears that Allstate has conceded that it mishandled certain aspects of this file and its submissions instead highlight the actions it took to mitigate these “inadvertences.” I do find Allstate has taken steps to rectify a situation that left the applicant’s IRB claim dangling in limbo for far too long, as evidenced by its $12,392.60 retroactive payment, plus $434.95 in interest, in March 2020. However, I find this payment was only necessary as a result of a series of unclear reasons related to the IRB suspension that kept shifting the goal posts: the s. 33 requests Allstate admits were not proper, the need for an x-ray that was not supported by the applicant’s physician or its own assessors, the need for a CPP application, then the need for proof of physiotherapy, etc. In my view, this constitutes file handling that is excessive, imprudent and immoderate and I disagree with Allstate’s submission that the suspension of the applicant’s IRB—leaving her without income replacement for over a year—did not cause her harm.
31While I agree with the applicant that Allstate’s denial of her physiatry assessment on the basis that it was a duplication was tenuous decision, it is well-settled that incorrect adjusting decisions do not automatically warrant a s. 10 award, and especially so where there is a genuine dispute over whether the treatment or assessment is reasonable and necessary. Further, I agree with Allstate that the applicant’s failure to attend several s. 44 IEs contributed to the delay in the payment of benefits and I note the evidence that it provided notice to the applicant as well as the report via regular mail. Contrary to the applicant’s submissions, I find no evidence that Allstate “coerced” her into attending an IE that was not reasonably necessary, as alleged. I also find that Allstate’s decision to remit payment for many of the benefits in dispute, with interest, is a mitigating factor.
32The applicant’s claim for the maximum 50% award is, in my view, unrealistic and not supported by the caselaw. I would not give effect to her submissions regarding the three physical therapy treatment plans, the physiatry assessment that required analysis under s. 15 or the HST balance on the other assessments, which I find is chiefly clerical in nature rather than an unreasonable withholding. However, I do find merit to her claims regarding Allstate’s unreasonable suspension of her IRB and the delayed payment of the balance of the psychological counselling for reasons that remain largely unclear. I find these adjusting decisions were certainly something more than just “inadvertences.” Rather, I find the decisions unyielding, stubborn and imprudent. While these decisions were mitigated sometime later, I agree with the applicant that some deterrence is reasonable.
33Accordingly, I find a s. 10 award in the amount of $1,500, plus 2% interest per month, compounded monthly, is appropriate, representing approximately 10% of the total benefits paid, due to Allstate’s unreasonable withholding and delay of the payment of the applicant’s IRB and psychological treatment
ORDER
34The applicant is entitled to interest on the unpaid balance of psychological treatment that was incurred under issue (i).
35The applicant is entitled to payment for the physiatry assessment as it is reasonable and necessary under issue (ii).
36The applicant is entitled to interest on incurred amounts for issues (v)(a-c) pursuant to s. 51(4).
37The applicant is entitled to a s. 10 award in the amount of $1,500, plus 2% interest per month compounded monthly, due to Allstate’s unreasonable withholding and delay of the payment of benefits under issue (vi).
38The remaining issues were resolved.
Released: January 21, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- See, for e.g., S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).