Release date: 05/21/2021
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:
Elankainathan Manikam
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Nathan Ferguson
APPEARANCES:
For the Applicant:
Elankainathan Manikam, Applicant
Jono Schneider, Counsel
For the Respondent:
Aviva Insurance Canada
Andrew Smith, Counsel
HEARD
By way of written submissions
OVERVIEW
1The applicant, (“Elankainathan Manikam”) was involved in an automobile accident on November 5, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Elankainathan Manikam was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The issues in dispute were partially resolved at a case conference, however, the applicant requested a determination regarding the interest owed to him and an award against the respondent. The insurer agrees that this matter was not adjusted correctly but argues that any error was either inadvertent or did not cause an unreasonable delay or denial of a benefit to Elankainathan Manikam.
3I agree with the respondent in this instance. Although the adjusting of this matter was deficient, the errors made by the insurer did not amount to unreasonable withholding or delay of benefits in dispute. Therefore, the applicant is not entitled to an award as outlined in section 10 of Regulation 664.
4The respondent’s adjuster (“VF”) was examined by teleconference on July 27, 2020. VF’s testimony and the written submissions of the parties were reviewed in their entirety in making this decision, although only those elements that are particularly illustrative or essential to findings made are directly referenced herein.
ISSUES
5Is the applicant entitled to interest in respect of the following overdue payment of benefits?
6Is the applicant entitled to an award under s. 10 of O.Reg 664 because the respondent unreasonably withheld or delayed the payment of the following benefits?
a. Is the applicant entitled to receive a non-earner benefit in the amount of $185 per week from December 3, 2016 to date and ongoing?
b. Is the applicant entitled to a medical benefit in the amount of $2,096.49 for physiotherapy recommended by Fairview Wellness Centre in a treatment plan (OCF18) submitted on March 19, 2019 and denied on April 2, 2019?
ANALYSIS
7There is no significant factual dispute in this application. The parties agree with one another as to the timelines of application and payment of the benefits in dispute. There is no dispute that the applicant is entitled to the benefits which underpin the application.
8The interpretation of the insurer’s actions (or inaction) as warranting an award because this caused an unreasonable delay in payment of benefit or amounted to an unreasonable withholding of a payment of benefit, and whether additional interest is owing, is all that remains in dispute.
Evidence of the Adjuster, VF
9VF testified that she is employed by the respondent and handled the adjustment of this file beginning November 13, 2018. Previously, the adjustment was handled by other employees of the respondent.
10The applicant was paid non-earner benefits for the period of December 3, 2016 to February 15, 2018. The respondent relied on assessments completed by July 25, 2017 to deny and terminate non-earner benefits effective February 25, 2018.
11VF confirmed that the reports on which the insurer relied were not sent to the applicant when completed and ought to have been sent within 10 days of their completion. This is an obvious error.
12VF also acknowledged the initial payment of non-earner benefits should have been made in January 2017, but was made in March of 2017 for the period from December 2016 to March 2017. Payments were also delayed between November 12, 2017 and February of 2018, for which interest was paid.
13The respondent, in written submissions (see paragraphs 8 to10 of the Written Submissions of the Responding Insurer dated August 24, 2020) “…concedes that there were unreasonable errors made in the adjusting of this file…” There were two specifically admitted errors.
14First, that approximately $40.00 of interest ought to have been paid to the applicant in March 10, 2017 for the period of non-earner benefits paid to that date. Second, that the Section 44 reports on which the respondent relied to deny the non-earner benefits claim ought to have been sent within 10 days of their completion and were not. VF described the impact of delaying the consideration of Section 44 reports for 7 months as having allowed the applicant to receive the non-earner benefit for an additional 7 months.
15The respondent argues that the errors were “…neither in relation to the denied benefits nor the benefits raised in issue by [Elankainathan Manikam]” (paragraph 8).
16The applicant underscored that VF, and all other adjusters handling this file, did not reference the applicant’s spouse’s dementia in their log notes. I appreciate that this is an important consideration for the applicant and impacts his daily life significantly. However, there is no requirement that a specific mention be made of this in the log notes. The log notes do refer to various reports and examinations which make reference to the applicant’s daily life. There is no persuasive reason to conclude that the respondent’s omission of a specific log note on this point establishes ignorance or callousness in this respect.
17In addition, the applicant stressed the conclusion of VF’s testimony in which she was asked about her understanding of a “good faith obligation” and she responded that she is “not sure what that means”. I agree that this is troubling. It would seem a relatively fundamental aspect of the respondent’s employees’ daily function. However, there is no reason to suppose a person unfamiliar with the definition of a term is unable to act within the meaning of the term despite their ignorance. In my view, after VF began to adjust this file, the respondent communicated with the applicant efficiently and appears to have adjusted the matter in good faith. In other words, VF’s lack of knowledge of this term does not appear to have impaired her ability to act in good faith.
18The errors established in the adjustment of this matter occurred between December 2016 and March 2017, and between July 25, 2017 and February 15, 2018.
Award/Unreasonable Conduct
Error #1: Non-Earner Benefit December 2016 to March 10, 2017
19Awards are not ordered simply on the basis of an insurer making an error. The applicant is correct to note that malice or ill-will need not be established (see page16 Submissions of the Applicant). However, to attract an award, the insurer’s conduct must be unreasonable which in the leading case law has been defined as excessive, imprudent, stubborn, inflexible, unyielding or immoderate (see Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) page 17).
20Elankainathan Manikam applied for a non-earner benefit and submitted an OCF-3 supporting this application on January 3, 2017. The respondent ought to have paid the benefit by January 17, 2017. The benefit was paid March 3, 2017, 44 days late.
21VF was not able to provide a reason for the delay experienced by the applicant, except oversight or error. The respondent indicates in written submissions that interest has been paid on the non-earner benefit payment as well as on the interest which ought to have been paid up to July 8, 2020. In my view, although this was a minor delay in the payment of the non-earner benefit, it was addressed in relatively short order and interest on overdue amounts, including interest on the interest owed, have been paid. The insurer did not appear to act in an excessive or unyielding fashion with respect to this error. It seems to be an oversight which was corrected before this hearing and resulted in minimal delay.
Error #2: Provision of Section 44 Reports and Denial of Non-Earner Benefit February 15, 2018
22The insurer acknowledges the Section 44 reports provided to the applicant were late by 7 months. This is a lengthy delay. There is no explanation for the delay. Elankainathan Manikam’s counsel requested the reports on several occasions. The insurer’s internal ombudsman was engaged by the applicant to seek the reports. This took place between July 25, 2017 and February 15, 2018. However, Elankainathan Manikam received non-earner benefits during this period of time. His entitlement to non-earner benefits was not denied at any point before February 15, 2018.
23As Elankainathan Manikam was in receipt of the benefit at the time of the insurer’s admittedly unreasonable conduct, I find that payment of the benefit was not delayed or denied as a result of the conduct. Having provided the Section 44 reports to the applicant, the respondent then denied the benefit on the basis of their content.
24While Elankainathan Manikam argues these were deficient as a result of failing to fully address Elankainathan Manikam’s circumstances and having referred to external documents that were not included at the time, the insurer disagreed. There is no log note or other admission of the respondent suggesting the reports were discounted or considered unreliable by the insurer. The insurer is generally entitled to rely on the opinion of its assessors in denying a benefit, and did so.
25Elankainathan Manikam argues that the insurer’s reversal at the case conference level demonstrates the reporting was unreliable or the insurer’s position at a hearing was unsupportable. I do not agree, nor do I speculate as to which of the multitude of reasons that might lead to an early resolution of an application before this Tribunal was considered most persuasive by the insurer in this instance.
26I do not consider the insurer’s decision to rely on reports, even if the reports were not provided in a timely fashion, unreasonable on its face and further find on a balance of probabilities that this decision did not delay or withhold a payable benefit in any case. The benefit was paid until the reports were provided. At the time of resolution of the non-earner benefit the insurer agreed to pay the full amount of the benefit as well as interest from the denial to the date of the resolution. I find that this does not warrant a further award or any additional interest.
The Disputed Treatment Plan
27The applicant sought payment of a treatment plan dated March 19, 2019 for physiotherapy services. This was denied by the insurer on April 2, 2019 on the basis of Dr. Kopansky-Giles’ May 27, 2019 report. Dr. Kopansky-Giles considered this treatment unnecessary because Elankainathan Manikam reached maximum medical recovery. The insurer’s reliance on its own assessor’s reports is not sufficient to demonstrate an award is applicable in these circumstances.
28There does not appear to be any conduct that illustrated the insurer denied the benefit because it was acting in an excessive, imprudent, stubborn, inflexible, unyielding or immoderate fashion. Rather, the parties disagreed, until the without prejudice negotiations which took place leading up to this hearing. At that time, the respondent agreed to pay the benefit. I find no behaviour that warrants an award or additional interest in the circumstances.
CONCLUSION
29I find that the applicant failed to demonstrate on a balance of probabilities that an award and additional interest is appropriate in this instance. The payment of benefits was not unreasonably delayed or denied by the respondent. Elankainathan Manikam’s entitlement to non-earner benefits was not delayed with respect to the late provision of Section 44 reports and was delayed minimally, for which interest was sufficient remedy regarding the late response in March 2017. If the late reporting had caused an interruption to the applicant’s entitlement, I might have ordered an award. As to the physiotherapy services in dispute, the respondent simply relied on its own assessors and resolved the issue in the ordinary course of negotiations.
ORDER
30The application is denied. The applicant is not entitled to an award or additional interest relating to the matters in dispute.
Released: May 21, 2021
Nathan Ferguson, Adjudicator