Sandola v. Travelers Insurance, 2021 CanLII 73544

Licence Appeal Tribunal

Citation: Sandola v. Travelers Insurance, 2021 ONLAT 20-000648/AABS

Release date: 08/10/2021

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:

Frank Sandola

Applicant

and

Travelers Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Gordon Harris, Counsel

For the Respondent:

Sara Baum, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Frank Sandola, was injured in an automobile accident on July 2, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Travelers Insurance, the respondent.

2The respondent denied the applicant’s claims for various treatments and assessments and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3At the July 2, 2020 case conference, the parties resolved the applicant’s claim for all past, present and future medical/rehabilitation benefits for $848.51, which was the remaining amount of benefits available under the applicant’s $50,000.00 medical/rehabilitation policy limits.² As a result, the only issue that remained in dispute was the applicant’s claim for an award under O. Reg. 664 for unreasonably withheld or delayed payment of benefits. A written hearing was scheduled to determine this issue.

ISSUE IN DISPUTE

4The following issue is to be decided:

(i) Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed the following payments to the applicant:

(a) $598.50 ($1,267.00 less $668.50 approved) for physiotherapy services, recommended by Anthony Chen in a treatment plan (OCF-18) dated December 21, 2017;

(b) $2,456.20 ($2,656.20 less $200.00 approved) for chiropractic services, recommended by Dr. Gary Dix in an OCF-18 dated January 29, 2018;

(c) $519.98 for massage therapy, recommended by Ashley Lodewyks in an OCF-18 dated January 25, 2018;

(d) $2,000.00 ($6,200.00 less $4,200.00 approved) for a neuropsychological assessment, recommended by Kaplan and Levitt Psychologists in an OCF-18 dated April 24, 2018;

(e) $1,960.17 for an orthopaedic assessment, recommended by Dr. B. Dunlop in an OCF-18 dated April 18, 2018; and

(f) $3,049.96 for medical marijuana, recommended by FunctionAbility in an OCF-18 dated May 17, 2018.

RESULT

5I find that the applicant is entitled to a s. 10 award under O. Reg. 664 in the amount of $42.43, with applicable interest, as a result of the respondent’s delay in making payment to the applicant up to his policy limits of $848.51 for the April 18, 2018 OCF-18 for an orthopaedic assessment.

ANALYSIS

6Section 10 of O. Reg. 664 provides as follows:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. [emphasis added]

7At the outset, the parties disagreed on whether an award under s. 10 of O. Reg. 664 would be calculated based upon the amount of medical/rehabilitation benefits available at the time of the case conference (when the respondent agreed to pay out the remainder of the policy) or if the calculation should be based upon the total amount of the treatment plans in dispute.

8I agree with the respondent that had the substantive issues not been resolved at the case conference and proceeded to a hearing, the maximum amount of benefits that the applicant could be entitled to was $848.51, which was the balance remaining in his policy limits. A plain reading of the words from s. 10 of, “the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule,” is that the power to make an award is limited in reference to an actual payment of benefits. In this case, the payment of benefits would have been capped at $848.51. Therefore, I find that I am only able to award a lump sum of up to 50 per cent of $848.51. This is the amount to which the applicant was entitled to at the time of the award, as the applicant is not entitled to benefits in excess of his policy limits.

9Moreover, while the respondent agreed to pay $848.51 to the applicant, it did not approve any of the disputed treatment plans or allocate these funds to payment for a specific treatment plan. Therefore, before I am able to determine whether the respondent unreasonably withheld or delayed payment of benefits to the applicant, I must determine if the applicant was entitled to any of the disputed treatment plans up to remaining funding room of $848.51 as the power to make an award is limited in reference to an actual payment of benefits.

The April 18, 2018 OCF-18 and Entitlement to an Award

10The April 18, 2018 OCF-18 was completed by Dr. Brett Dunlop and sought funding for an orthopaedic assessment.

11On May 1, 2018, the respondent wrote to the applicant and denied this treatment plan. In its correspondence, the respondent stated:

A review of your file indicates you previously attended an orthopedic assessment with Dr. Gilbert Yu Ming Yee of HVE Healthcare Assessments on Feb 26, 2018. Therefore, it is not reasonable to perform a similar assessment at this time to identify a diagnosis and specific treatment plan. It appears to be adequately addressed.³

12The applicant’s position is that the proposed orthopaedic assessment was not a duplication of services because Dr. Yee’s assessment was completed under s. 44 of the Schedule, not s. 25. In this regard, the applicant relied upon the Tribunal’s decision in M.J. v. Dufferin Mutual Insurance Company (M.J. v. Dufferin)⁴ which held that a proposed assessment under s. 25 of the Schedule was not a duplication of services of an assessment obtained by the insurer under s. 44.⁵ The applicant submitted that the respondent’s denial was, therefore, illogical.

13The respondent stood by its original denial in its submissions and further maintained that the proposed orthopaedic assessment would only be payable under s. 25 of the Schedule if it was found to be reasonable and necessary. The respondent submitted that the OCF-18 provided no explanation as to why a further orthopaedic assessment would be reasonable and necessary considering the nature of the claimant’s injuries as documented by the available file information and Dr. Yee’s report.

14I agree with the applicant and the decision in M.J. v. Dufferin. Section 25 requires an insurer to pay for assessment expenses incurred by or on behalf of an insured person. The purposes of assessments that proceed under s. 44, on the other hand, are to assist an insurer to determine whether an insured person is, or continues to be, entitled to a benefit. Therefore, I find that the proposed orthopaedic assessment sought by the applicant was not a “duplication of services” of Dr. Yee’s assessment obtained by the respondent under s. 44. As a result, and similar to the decision in M.J. v. Dufferin, I find that the respondent’s May 1, 2018 letter did not provide a valid medical, or other, basis for the respondent’s denial.

15I also find that the proposed orthopaedic assessment was reasonable and necessary. The applicant requested an orthopaedic assessment after he was assessed by Dr. Yee. Dr. Yee’s March 8, 2018 Orthopaedic Assessment Report⁶ was the basis upon which the respondent denied/partially denied the December 21, 2017 OCF-18 for physiotherapy, the January 25, 2018 OCF-18 for massage therapy and the January 29, 2018 OCF-18 for chiropractic services. It was reasonable for the applicant to request his own orthopaedic assessment under s. 25 to review and, if applicable, counter Dr. Yee’s report. I also find that the proposed assessment was reasonable given that Dr. Yee had diagnosed the applicant with residual symptomatology related to myofascial strains of the cervical and thoracolumbar spine and an exacerbation of his underlying degenerative disc disease and chronic back pain.

16For these reasons, I find that the applicant has proven that the April 18, 2018 OCF-18 for an orthopaedic assessment was reasonable and necessary and he is entitled to payment for this treatment plan up to his policy limits of $848.51. As a result of this determination, I do not need make any further findings regarding the applicant’s entitlement to the remainder of the disputed treatment plans as his policy limits are exhausted by this OCF-18.

17I also find that the respondent’s May 1, 2018 letter caused a delay in payment for this assessment as the respondent only agreed to pay out the remainder of the applicant’s policy limits on July 2, 2020. Therefore, I find that the applicant is entitled to a s. 10 award.

Quantum of Award

18The applicant sought an award in the amount of 50 per cent whereas the respondent submitted that if an award is warranted, an award in the amount of 5% is more appropriate given that the facts in this matter are similar to those in M.J. v. Dufferin where a 5% award was ordered.

19I find that like the decision in M.J. v. Dufferin, there is limited evidence to suggest that the respondent’s conduct rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding and immoderate such than an award of 50% is warranted. Instead, I find that a nominal award of 5% is more appropriate to remind the respondent, as the Tribunal did in M.J. v. Dufferin, of its continuing duty to provide valid reasons when denying a claim and that s. 25 assessments are not duplications of s. 44 assessments. Therefore, I find that the applicant is entitled to an award in the amount of $42.43 (5% of $848.51).

CONCLUSION

20For the reasons outlined above, I find that the applicant is entitled to an award under s. 10 of O. Reg. 664 in the amount of $42.43, with applicable interest, as a result of the respondent’s delay in making payment for the April 18, 2018 OCF-18 for an orthopaedic assessment up to the policy limits of $848.51.

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the Respondent, para. 2.
3. 3Respondent’s Hearing Brief, tab 10.
4. 42020 CanLII 87976 (ON LAT).
5. 5Ibid. at para. 10.
6. 6Respondent’s Hearing Brief, tab 7.