Williams v. Allstate Insurance Company, 2021 CanLII 30757

Citation: Williams v. Allstate Insurance Company, 2021 ONLAT 19-013488/AABS

Release date: 04/14/2021

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:

David Williams

Applicant

and

Allstate Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Godfrey Bakeerathan, Counsel

For the Respondent:

Sandra Buhain, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on March 1, 2019, and sought various benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Allstate denied his claims on the basis of the Minor Injury Guideline (“MIG”) and a lack of supporting medical documentation. The applicant applied to the Tribunal for resolution of the dispute on December 5, 2019.

2Following a case conference, a written hearing on a number of issues was scheduled for February 16, 2021. Prior to the filing of submissions, Allstate removed the applicant from the MIG and approved all of the treatment plans. As a result, the only issues in dispute that proceeded to this written hearing are interest on the treatment plans and an award under s. 10 of O. Reg. 664.

ISSUE IN DISPUTE

3The following are the issues in dispute:

i. Is the applicant entitled to an award under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find a s. 10 award is not appropriate. As the applicant did not provide evidence that the approved treatment plans were incurred, interest does not apply.

ANALYSIS

Section 10 Award

5Under s. 10 of O. Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”² The onus is on the applicant to prove, on a balance of probabilities, that Allstate’s conduct meets this criteria.

6The applicant submits that an award of 50% is appropriate due to Allstate’s behaviour in denying the physiotherapy and chiropractic treatment and psychological assessment that was originally in dispute. He asserts that he “provided ample evidence to demonstrate the existence of his physical and psychological impairments” but Allstate’s refusal to fund the OCF-18s was unreasonable and caused substantial delay in his recovery.

7Allstate asserts that at all times in the life of the file it acted diligently, fairly and in good faith and in full compliance with its obligations. It submits that the adjuster’s actions in this matter were made with a rational basis; that it responded promptly to claims; exercised its right to conduct s. 44 examinations; made proper requests for more information from the applicant that were not promptly fulfilled; and that it re-visited its MIG determination and denials when the medical information requested was provided. Further, Allstate submits that an insurer should not be held to a standard of perfection and that a s. 10 award is not meant to be punishment for getting a decision wrong but rather as a result of unreasonably conduct, a distinction that the applicant has failed to make.

8I agree with Allstate. The applicant’s submissions did not engage with the “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” language the Tribunal has endorsed when analyzing s. 10 claims. Instead, I agree with Allstate that his submissions focused on the ways in which the evidence and material were considered. This argument is problematic because, on the timeline presented by Allstate—which was not rebutted on reply by the applicant—it appears that much of the blame for delay and alleged inconsistencies in adjusting the claim can be laid at the applicant’s feet.

9Indeed, after receiving the OCF-1, on March 12, 2019 Allstate requested the applicant’s family doctor records, an OHIP summary and the hospital records. It had to follow up on its requests on March 26, 2019, April 4, 2019, April 29, 2019 and May 6, 2019. When the applicant submitted the OCF-18 for a psychological assessment on April 25, 2019, Allstate was not yet in receipt of any medical records to support the plan, which resulted in the denial based on the MIG. Allstate scheduled a s. 44 examination, which was cancelled twice by the applicant, on July 5, 2019 and August 12, 2019, causing delay.

10In a similar vein, after receiving the St. Joseph’s Hospital MRI report on July 4, 2019, Allstate’s correspondence to the applicant indicates that it still did not have anything to compare it to in order to ensure that the impairment was not pre-existing and as a result of the accident. In the same correspondence, Allstate confirmed that because it had not yet received the family doctor’s records or the OHIP summary and that since the hospital records did not contain a reference to a shoulder injury, it was maintaining its MIG position. Then, in October 2019, Allstate conducted three s. 44 examinations for neurology, psychology and physiatry to assess the MIG and the applicant’s income replacement benefit claim. Allstate relied on these reports to maintain its MIG position and denials.

11It was not until November 21, 2019 that the applicant provided the notes of his family doctor and proof of a request for his decoded OHIP summary. A decoded OHIP summary was not submitted to Allstate until January 8, 2020. However, the applicant filed his application with the Tribunal on December 5, 2019.

12With the requested information provided, Allstate scheduled addendums with its s. 44 assessors. In an addendum dated March 12, 2020, the s. 44 assessors’ opinions remained unchanged. Allstate communicated the findings to the applicant on March 16, 2020 and maintained its MIG position. The parties’ proceeded to the case conference on May 12, 2020 and set a production deadline of October 16, 2020.

13On October 15, 2020, Allstate received a number of productions that it identifies as “new”, including: Dr. Alled’s clinical notes from March 7, 2018 to September 17, 2020; a collateral benefits file from Claimsecure; updated clinical notes from Dr. Matthews; and a physiatry report from Dr. Wong dated October 2, 2020. On October 19, 2020, Allstate also received clinical notes and records from Alpha Thistletown Physiotherapy and Rehab dated August 17, 2020.

14On November 11, 2020, and on the basis of the new information received, Allstate revisited its determinations, removing the applicant from the MIG and approving the four OCF-18s in dispute.

15On this undisputed timeline, it is difficult to see how Allstate’s conduct was excessive, imprudent, stubborn, inflexible, unyielding or immoderate to justify an award. Indeed, it does not appear that Allstate had a full understanding of the applicant’s impairments until the production deadline for this written hearing. When the applicant finally provided all of the relevant medical documentation, Allstate revisited its determinations and, less than one month after receiving the “new” documents, removed the applicant from the MIG and approved payment for all of the OCF-18s in dispute. In my view, this is a clear indication of an insurer revisiting its determinations and adjusting the file in good faith based on new information before it. I fail to see how this is evidence that its conduct was imprudent, stubborn, inflexible or unyielding.

16In a similar vein, it is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion. I agree with Allstate that there is no evidence that it was in possession of critical information that it ignored or failed to address by way of a s. 44 examination or in an explanation of benefits, as it conducted three s. 44 examinations, sought three addendums as the medical evidence was updated and consistently communicated its decisions with the applicant.

17I agree that this is not a situation where Allstate stubbornly maintained a wrong conclusion, rather, it demonstrated flexibility and good faith to its insured in revising its conclusion on receipt of productions that provided a clearer picture of the applicant’s impairments. This does not constitute unreasonable withholding or delay of payment to justify a 50% award, as requested. An award is not appropriate, as no deterrence is required.

The applicant did not provide evidence of incurred

18Finally, in submissions, the applicant requested an order that interest be payable “on the incurred treatment plans” because they were reasonable and necessary. However, I agree with Allstate that the applicant did not provide proof that any of the OCF-18s were incurred prior to November 11, 2020 when Allstate approved them or anytime since. Accordingly, since interest cannot accrue on goods and services which have not been incurred—and where I find there is no evidence or submissions to deem them incurred under s. 3(8)—no interest is payable.

ORDER

19An award is not appropriate. The applicant has not provided evidence that the approved treatment plans were incurred to warrant interest under s. 51. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration).