Citation: Poznanovic v. Allstate Insurance Company of Canada, 2023 ONLAT 21-012786/AABS

Licence Appeal Tribunal File Number: 21-012786/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:

Agica Poznanovic

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Bryan Rumble, Counsel

For the Respondent: Derek Yap, Counsel

HEARD: By way of written submissions

OVERVIEW

1Agica Poznanovic, the applicant, was involved in an automobile accident on May 21, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Allstate Insurance Company of Canada, and in a previous application, applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At a settlement conference on August 6, 2021, the parties reached a full and final settlement of the applicant’s accident benefits file. The applicant signed a settlement disclosure notice and full and final release on August 11, 2021. However, a dispute subsequently arose between the parties with respect to the respondent’s refusal to pay an OCF-21 relating to a treatment plan that had been approved and incurred prior to the settlement. As a result, the applicant initiated the current application for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $1,496.10 for an outstanding account for psychological services provided by Dr. Lisa Lee, submitted on a standard invoice form (OCF-21)?

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

iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the respondent entitled to costs?

RESULT

4The applicant is not entitled to payment of the outstanding OCF-21, interest or an award.

5The respondent’s request for costs is denied.

ANALYSIS

Parties’ positions

6The applicant does not dispute that the parties have settled her accident benefits file on a full and final basis. Nor does the applicant dispute the validity of the settlement disclosure notice or the release. However, she submits that a treatment plan (“OCF-18”) dated November 24, 2020 for psychological services was approved, partially incurred and invoiced by way of OCF-21 prior to the settlement conference, and as such, the respondent is responsible for paying the outstanding account. The applicant further argues that the respondent’s adjuster had contacted the psychological treatment provider, Dr. Lee, prior to the settlement conference to confirm the incurred amount of the OCF-18, and that at no point during the settlement discussions did the respondent advise that payment on the OCF-21 had not been made. The applicant submits that a claimant should be able to assume that an approved, incurred and invoiced treatment plan would be paid by an insurer outside of a potential settlement.

7The respondent submits that the applicant is not entitled to any further payments. It argues that the settlement disclosure notice is clear and unequivocal in stating that the settlement amount of $27,740.00 for medical and rehabilitation benefits was for all previously approved and incurred expenses. It argues that all outstanding accounts were considered and included in its settlement offer, and that it was the responsibility of the applicant to obtain the outstanding accounts of service providers prior to settlement discussions. As such, the respondent submits that payment of Dr. Lee’s account should come out of the applicant’s settlement funds.

The applicant has not established entitlement to payment of the outstanding account of Dr. Lee

8I find that the parties’ full and final settlement included the outstanding account relating to the OCF-18 for psychological treatment. As such, the applicant is not entitled to payment of the outstanding OCF-21.

9I agree with the respondent that the settlement disclosure notice (“notice”) signed by the applicant is clear and unequivocal. The notice expressly states that the offer “includes all expenses incurred for goods and services as previously approved”. I do not see how the psychological treatment incurred by the applicant with respect to the OCF-18 in dispute would not fall under this provision. The applicant initialled the applicable page containing this provision, and executed the notice.

10I further do not find the applicant’s argument, that an OCF-21 had been submitted prior to the settlement discussions, to be a persuasive reason to find that the outstanding amount is removed from the settlement. The notice specified that the settlement encompassed all approved and incurred services. I do not find that the fact that services were also invoiced, changes the applicability of this section of the notice.

11The applicant argues that there is no way that she could have known whether the invoiced treatment had been paid by the respondent prior to settlement. She further submits that she would have had every right to assume that the respondent had paid the amount, unless otherwise advised. However, the applicant does not cite any caselaw in support of her argument that the respondent had the onus to advise the applicant, as part of the settlement discussions, whether it would be paying the outstanding OCF-21. Rather, I find that this was a point to be clarified between the parties, which the applicant could have raised prior to, or during settlement discussions. The lack of clarification on the issue does not detract from the clear language in the notice that the settlement amount included all approved and incurred services.

12As such, I find that as the parties reached a full and final settlement of the applicant’s accident benefits file, no further benefits are payable by the respondent.

Interest and Award

13Pursuant to s. 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. As I have determined that no payment is owing, the applicant is not entitled to interest as a result.

14Pursuant to s. 10 of Regulation 664, the applicant is only entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. In this case, the applicant has not established that the respondent acted unreasonably in withholding or delaying payment and so, is not entitled to an award.

Costs

15Rule 19 of the Common Rules of Practice and Procedure permit a tribunal to grant costs against a party, where a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. The respondent seeks costs in the amount of $2,500.00 on the grounds that the applicant has frivolously and unreasonably brought this application after signing a full and final settlement. It argues that in order to maintain the integrity and value of settlements, frivolous applications such as these must be deterred.

16I find that the respondent has failed to establish a basis for a costs award. While I accept that the respondent has incurred expenses in defending this application, I fail to see the applicant’s decision to bring an application for dispute resolution as serious misconduct that is vexatious or unreasonable. The parties disagreed as to whether the invoiced treatment should be paid outside of the settlement. The mandate of the Tribunal is to resolve the disagreement among parties. The respondent has not established that there has been bad faith or otherwise any conduct by the applicant that would attract a cost award.

ORDER

17For the foregoing reasons I find that the applicant is not entitled to payment of the outstanding OCF-21, interest or an award. The respondent is not entitled to costs. The application is dismissed.