Licence Appeal Tribunal File Number: 22-000554/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:
[K M.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Janet Hueglin Hartwick
APPEARANCES:
For the Applicant:
[K.M.], Applicant (Did not attend)
[J. L.F.], Guardian/Mother
Doug Wright, Counsel
Aryeh Samuel, Counsel
For the Respondent:
Lynn Highly, Adjuster
Kimberley Tye, Counsel
Tom Hughes, Counsel
Court Reporter:
Jason Nebelung
HEARD: by Videoconference:
January 16-18, 2023
OVERVIEW
1[K. M.], the applicant, sustained a catastrophic impairment as a result of his injuries from an automobile accident on March 21, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant had access to optional benefits. The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2Prior to the start of the hearing, the respondent approved the following treatment plans/OCF-18s in dispute. On December 7, 2022, the respondent approved $26,000.00 for the monthly difference in rent. On December 19, 2022, the respondent agreed to fund $770,000.00 for a house purchase, $29,000.00 for renovations to suit the applicant’s medical needs and up to $100,000.00 for a wheelchair accessible vehicle. On January 6, 2023, the respondent issued payment for the outstanding attendant care benefit (ACB) of $1,753.50 plus interest.
3Therefore, all issues in dispute were settled prior to the start of the hearing. The applicant then requested to add the issue of an award which was agreed to by the respondent. In addition, the applicant submits that if the Tribunal finds the respondent unreasonably withheld or delayed payments, that a finding of a deemed incurred expense pursuant to section 3(8) of the Schedule is warranted on all three referenced above.
ISSUES
4Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find the applicant is entitled to an award of 50 per cent, for the cost of the $100,000.00 vehicle, difference in rent of $26,000.00 and ACB payment of $1,753.50, plus interest, if any, in accordance with Regulation 664.
7I deem incurred the rental costs of May 5, 2022 to December 7, 2022, if they have not been paid to the applicant, pursuant to s. 3(8) of the Schedule.
PROCEDURAL ISSUES
8The applicant submitted a Notice of Motion, on the first day of the hearing, that requested an order for further particulars of three log notes. The applicant later amended the request to only one log note. The motion asked for the respondent to produce an unredacted log note or that I inspect the entry to determine the validity of the claim for privilege. The applicant submits the reasons given for the redaction given by the respondent’s insurer differed from the explanation given by respondent’s counsel. The respondent opposed the motion and is relying on Rule 15 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission that states a motion brought before the Tribunal must be filed 10 days in advance. The respondent provided counsel with additional log notes, and explanations of redactions, well past the production deadline in the Case Conference Report and Order. It asserts a rare or exceptional circumstance has not been shown which would necessitate the need to break solicitor-client privilege. The motion was denied orally with detailed reasons to be provided in writing.
9I declined to order the respondent to provide further particulars on the log note. I agree with the respondent that this is not a rare or exceptional circumstance. I am alive to the wording of s. 5.4(2) of the Statutory Powers Procedure Act which states the Tribunal’s power to make orders for disclosure does not extend to the production of privileged information, and s. 15(2)(a) states that privileged information is not admissible at a tribunal hearing. I find the particulars that have been provided for the redacted log note are sufficient.
ANALYSIS
Complex care provided at home
10The applicant was deemed catastrophically impaired on July 7, 2021. He is immobile, non-verbal, dependent for all acts of daily living (ADLs) including bladder and bowel care. A lift is used to transfer the applicant from his bed to a wheelchair as he cannot maintain a sitting position without support. When the applicant was medically stable, his mother/guardian, elected not to place him in a complex continuing care unit. Rather, she chose to utilize her training as a nurse and become his full-time medical caregiver. On May 5, 2022, the applicant was transferred from the hospital to the living room of the three-bedroom rental apartment he lived in prior to the accident with his mother, stepfather and four adult siblings.
The applicant has proven he is entitled to an award pursuant to section 10
11I find the applicant has met his burden to prove an award is merited.
12Section 10 of O. Reg. 664 states the Tribunal may award up to 50 per cent of the total benefits payable, entitled at the time of the award with interest, if it determines the insurer unreasonably withheld or delayed the payment of benefits. It is well-settled that an award should not be granted simply because it is determined an insurer made an error. I rely on the reasoning in Plowright v. Wellington, 1993 ONICDRG 66, an oft-cited case that both parties are relying upon. Plowright states an award is justified because the delay or withholding of benefits by the insurer stems from “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” I find the respondent’s actions have met this high bar.
13The applicant submits that the respondent unreasonably withheld and delayed payments on the following grounds:
a. the applicant had optional benefit coverage yet their claims were denied because the proposed costs exceeded policy limits;
b. the applicant and his mother/attendant caregiver were only eligible to receive housing benefits from the insurer if they moved into a two bedroom apartment and no longer lived with the rest of their family;
c. the request for an accessible vehicle was not addressed in the explanation of benefits (EOB);
d. approved benefits were not paid for several months on two separate occasions; and
e. the applicant was transferred from the hospital to an inaccessible apartment living room due to the respondent’s non-emergent adjustment of the file.
14The applicant relies on s. 16(1) of the Schedule that provides for the payment of reasonable and necessary activities and measures to facilitate the person’s reintegration into his or her family and the rest of society. Section 16(1)(3) includes home modifications, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable, as an activity or measure.
15In reply, the respondent submits the handling of this claim was entirely reasonable, without delays and considerate of the applicant’s safety. It acknowledges errors were made but asserts no damage was wrongly gained by the respondent as a result. The respondent submits it exercised its right to conduct s. 44 examinations and responded promptly once it received this information. Its adjusters followed-up continuously with the applicant and service providers to support the applicant’s transition home from the hospital.
16I agree with the applicant. I find the respondent unreasonably withheld and delayed the payment of benefits pursuant to s. 10 of the Schedule. While the respondent points to the instances where it adjusted the applicant’s claim in a timely manner, I agree with the applicant that the respondent’s unyielding and stubborn interpretation of its statutory duty delayed the applicant moving into an accessible location that would have afforded him the dignity he deserves.
The respondent’s denial of the first OCF-18 relied on inaccurate information and was inflexible
17For the purposes of this analysis, it is not necessary for me to consider whether the applicant is entitled to $924,671.00 for the treatment plan/OCF18, dated January 21, 2022, for a house, renovations and a wheelchair accessible vehicle. The respondent approved this treatment plan on December 19, 2022.
18On January 25, 2022, the respondent issued an EOB denying this OCF-18 and stated the house and renovations would not be approved for two reasons. First, the proposed costs exceed the available policy limits. Second, an insurer is not liable for the purchase of a new home in excess of the value of the renovations to an existing home that would be required to accommodate the applicant’s needs, pursuant to s. 16(4)(c) of the Schedule. No reference was made to the request for an accessible vehicle purchase.
19I find the adjuster’s handling of the OCF-18 was imprudent from the start. Lynn Highley, healthcare litigation specialist, testified that she was not aware the applicant had optional benefits when she denied the OCF-18. However, the respondent did understand the severity of the applicant’s injuries. He was deemed catastrophically impaired by the respondent on July 7, 2021. Six months later, Ms. Highley indicated in the insurer examination (IE) referral form the applicant was unresponsive in hospital and asked the occupational therapist (OT) to use the medical documentation on file to indicate any required recommendations. Ms. Highley testified she took this approach to expedite the IE for the applicant. The OT who accepted the referral indicated a paper review would not be possible. The IE, ordered on February 9, 2022, occurred seven months later on September 7, 2022 and the report was issued three months later on December 2, 2022. The respondent testified this was delayed due to COVID-19.
20The EOB issued December 7, 2022, 11 months after the OCF-18 was submitted, maintained its denial. It cited s. 16(4)(c) of the Schedule and stated it is awaiting a construction report to determine these costs as the OCF-18 did not provide cost details from an appropriate professional and the applicant continues to recover therefore his long-term needs may change so a wheelchair accessible vehicle is not reasonable or necessary. In actuality, the respondent did not order a construction report. The adjuster who denied the OCF-18 testified she decided to hold off on the construction report until she received the results of the OT IE, which as mentioned above, was delayed because of a backlog of IE requests due to COVID-19.
21I agree with the applicant that the respondent’s denial of this OCF-18 was unreasonable for the following reasons.
22First, the applicant’s claim was adjusted with an incorrect understanding of his policy limits. The applicant had optional benefits worth three million dollars which were correctly listed in an adjuster’s log note on March 24, 2021. However, the January 25, 2022 EOB stated the proposed cost exceeded the applicant’s available policy limits. Ms. Highley, who denied the OCF-18, testified she was unaware the applicant had optional benefits until the summer of 2022. I find it speculative for the respondent to assert the applicant was not negatively impacted by this error. It is not possible to know if Ms. Highley would have ordered additional IEs had she known the correct value of the policy.
23Ms. Highley testified that she decided she would order the construction report after receiving the results of the OT IE; a process that took 10 months to complete. I find that electing to take a two-step approach to evaluate this treatment plan slowed down the respondent’s adjustment of this file. The respondent submits the OT hired to assess the applicant was booked four to six months in advance for assessments, due to a backlog from Covid-19. While I accept the respondent has a right to an assessment pursuant to s. 44, I find the respondent failed to identify that this IE request was urgent due to the applicant’s circumstances. In my view, the respondent’s behaviour in this regard was inflexible and imprudent.
24Second, I find the wording of the respondent’s EOB is evidence of an unyielding pattern of behaviour. Despite being in compliance with the procedural requirement of an EOB, the wording of the letter did not outline options for the applicant to proceed towards a resolution. At the time the EOB was sent the applicant had been immobile, non-verbal and dependent for all ADLs for nearly a year. The handling adjuster who denied the housing benefit testified that she believed it was unsafe for the applicant to return to his pre-accident home and she was aware his discharge from hospital was starting to be arranged. Yet, the denial letter failed to communicate the cost of renovating the applicant’s existing home determines the amount of the housing benefit that he was entitled to receive. Nor did the respondent request a renovation report from the applicant or commission one on its own.
25It would have been ideal if the applicant had conducted a home modification assessment. However, I find the applicant’s choice to seek a new home instead of conduct a modification report did not negate the respondent’s obligation to determine the benefit the applicant was entitled to receive.
26I find the respondent’s inflexible behaviour failed to meet the statutory requirement set out by the Divisional Court. In Wynn v. Belair, [2003] O.J. No 3531, the Divisional Court states “there is a statutory requirement that the insurer has to meet to determine what it will cost to renovate, and that determination needs to be made, even though the rented premises of the plaintiff will not be renovated.” Clearly, the onus is on the respondent to determine the cost to renovate the pre-accident dwelling or communicate the information it needs from the applicant to complete this calculation. Rather than work with a highly vulnerable applicant to seek a reasonable resolution, I find the respondent’s behaviour stalled the applicant from accessing the housing benefit or understanding how to move forward.
27Third, the respondent failed to determine if the applicant was entitled to a wheelchair accessible vehicle. The EOB that denied the OCF-18 did not make any reference to the request for a vehicle. In my view, the respondent had a responsibility to determine the cost that the applicant was entitled to claim pursuant to s. 16(4)(e) of the Schedule which states an insurer is not liable for the purchase of a new vehicle in excess of the amount by which the cost of the new vehicle exceeds the trade-in value of the existing vehicle.
28The respondent did not request additional information from the applicant regarding this claim. It was aware the applicant was wheelchair bound as it established a taxi account for the applicant and his mother to attend medical appointments. Yet, as stated above, the January 25, 2022 EOB letter indicated the OCF-18 was denied because the proposed cost exceeded the applicant’s available policy limits and the respondent’s citation of s. 16(4)(c). The letter did not mention s. 16(4)(e). I find the respondent’s decision to not address this aspect of the OCF-18 was stubborn and incomplete.
29Fourth, I find the respondent took an unyielding approach to the severity of the applicant’s injuries. The EOB issued after the OT IE was complete, stated the applicant continues to recover therefore his long-term needs may change. Ms. Highley testified that she did not know where the applicant’s recovery would go until a doctor says the applicant has plateaued. Yet, she did not order a second IE from a medical doctor to quantify the applicant’s future prognosis. However, on March 9, 2022, Ms. Highley indicated in an email to the respondent’s assessor company, who facilitated the IE, that she did not think an OT alone could do the assessment. In my view, the respondent had an obligation to determine the applicant’s health status if it believed more information was necessary. I find its approach and the content of the EOB was lacking, stubborn and insensitive.
The respondent’s denial of the second OCF-18 was not timely and inflexible
30For the purposes of this analysis, it is not necessary for me to consider whether the applicant is entitled to $26,000.00 for the treatment plan/OCF18, dated March 15, 2022, for a difference in monthly apartment rental. The respondent approved this treatment plan on December 7, 2022, following receipt of the IE assessment report of OT Jessica Oh.
31The intent of this OCF-18 was to find temporary accommodation so the applicant could secure an accessible living arrangement ahead of his discharge from the hospital. The OCF-18 requested the difference in monthly rent in order to facilitate the applicant’s move into an accessible apartment and resume living with his family as he did pre-accident. This was submitted as an alternative to the previous treatment plan that was denied two months prior. In March of 2022, the applicant had further stabilized and he was cleared to be discharged to a complex care facility. The applicant’s mother/guardian sought to re-establish the pre-accident living arrangement with the rest of their family, pursuant to s. 16(1) of the Schedule. This included living with the applicant’s older brother who has Down syndrome and is also a dependent of the applicant’s mother/guardian.
32In my view, the respondent’s handling of the second OCF-18 was stubborn and inflexible. The EOB issued on March 28, 2022 denied the OCF-18 rental request on the basis that the respondent is not liable for the purchase of a different rental move in excess of the value of the renovations to his existing home that would be required to accommodate the applicant’s needs, pursuant to s. 16(4)(c) of the Schedule. At this time, the respondent was still unaware that the applicant had optional benefits. On March 28, 2022, it ordered the OT IE to evaluate this second OCF-18.
33I find it difficult to reconcile the denial of this OCF-18 with Ms. Highley’s testimony that she was concerned about the applicant’s safety if he returned to live in his former apartment. Relying on s. 16(4)(c), the respondent denied the applicant’s request for the difference in rental fees stating “the cost of the difference in the monthly rental is for a larger apartment for your entire family. The policy only provides coverage for yourself and since you require 24-hour personal care, our responsibility would be for a 2 bedroom.” I find the respondent misapplied s. 16(4)(c). The intention of this section is to cap the funds available for a new dwelling. It is not a tool meant to stop insurers from finding a reasonable solution for an applicant.
34I find the respondent should have understood that the applicant’s need to secure a new living arrangement was urgent. As the applicant’s medical condition began to stabilize in January 2022, the case management updates from Ms. Snow to Ms. Highley indicate a discharge plan was being put into place that would see the applicant move to a complex continuing care facility or to the full-time care of his mother. When this second OCF-18 was submitted in March 2022, the applicant had been offered a bed in a unit that specialized in caring for the geriatric population. The applicant’s mother/guardian did not consent to this transfer and testified he would be more stimulated and have the opportunity to socialize if living with his family as he did pre-accident. It was clear that the applicant needed to secure a new dwelling as his discharge from the hospital was imminent.
35I find the respondent was not open-minded to the applicant’s OCF-18 request. Ms. Highley testified she had not yet received a medical report to indicate the applicant’s status would be the same for the rest of his life. The IE she ordered occurred in September 2022, as part of the OT IE assessment that was already requested for the previous OCF-18. Ms. Highley testified that to approve the OCF-18 she would need to hear from a doctor that the applicant had plateaued. Yet, she did not order an IE to obtain such a finding. I find the respondent did not give the OCF-18 a fair consideration as an OT is not able to make a medical determination regarding a person’s medical prognosis.
36In my view, the applicant’s medical condition was well-known for months and the respondent could have acted more quickly. A neurological consult from [the hospital] stated that “given severity of brain injury and clinical course to date, I suspect that he has largely plateaued in terms of neurological functioning as he approached one year from the MVA. Although some improvements may occur, he will still require ongoing care for ADLs etc.” IE assessor and OT Jessica Oh testified the applicant has globally reduced cognition and that she cannot confirm to what extent he is oriented to place. Yet, the respondent’s December 7, 2022 EOB in which this OCF-18 was approved, indicated “You continue to recover from your injuries evidenced by your response to physiotherapy and speech language therapy.”
37I find it was not reasonable to ask the insured to choose between moving into the living room of the family’s inaccessible apartment or relocating into a 2-bedroom apartment, without [J.L.F.’s] husband or her son living with a disability for whom she is also a guardian. In my view, the submission of this OCF-18 provided a second opportunity for the respondent to meet its statutory obligation to determine the cost of renovating the applicant’s pre-accident apartment pursuant to s. 16(4)(c) and calculate the funds that would have been available to the applicant. This would have afforded the applicant the opportunity to move from the hospital to a safe and accessible location. I find the respondent’s unwillingness to work with the applicant towards a viable solution was harsh, not to mention excessive and stubborn.
The respondent’s underpayment of the ACB was corrected
38As I stated previously, it is not necessary for me to consider whether the applicant is entitled to the difference of an outstanding ACB payment of $1,753.50 plus interest. The respondent notified the applicant that it issued the payment on January 6, 2023.
39I will now address the quantum of award.
Several factors inform the quantum of the award
40Both parties direct me to case law that is guided by factors to consider when determining the quantum of an award. Some of the factors considered include the blameworthiness of the insurer's conduct, the amount withheld, the length of the delay, any prejudice to the insured, any mitigating factors, the need for deterrence and the vulnerability and potential harm to the insured person. See, for e.g., Y.K. v Aviva General Insurance Company, (2020 CanLII 34443 (ON LAT); J.T. v Certas Home and Auto Insurance Company, (2022 CanLII 49934 (ON LAT); Wynn v. Belair Direct, [2003] O.J. No. 3531 and D.K.M. v. Motor Vehicle Accident Claims Fund, (2017 CanLII 8202 (ON LAT).
41In my view, the respondent’s indifference to the vulnerability of the applicant is a significant aggravating factor in determining the appropriate quantum of the award. The applicant’s reliance on Y.K. v Aviva General Insurance Company, in which a catastrophically impaired person with a severe brain impairment and a litigation guardian, is granted a 50 per cent award is a compelling comparison to this case. Adjudicator Lester stated in her decision that “An insurance company is not held to a standard of perfection and is entitled to make errors. However, when such errors are numerous and continue in the face of an insured’s repeated follow-up as in this case, such conduct clearly becomes unreasonable.” In my view, this echoes the errors made in this case.
42The applicant is a particularly vulnerable member of society. He is a catastrophically impaired 27-year-old man who has a severe brain injury and requires a litigation guardian. He is immobile, non-verbal and dependent for all ADLs. This alone should have persuaded the respondent to act promptly, with the utmost care and due diligence in the handling of his file. The respondent failed to afford the applicant the consideration and dignity he deserved, particularly when he had access to optional benefits.
43I find the applicant was significantly and negatively impacted by the compounding effect of the errors made by the respondent’s adjusters, despite the efforts of his case manager and his mother/guardian. On two separate occasions adjusters approved ACBs and did not issue complete payments until several months later. The applicant’s mother/guardian testified she resorted to taking out loans and borrowing money to pay for food and rent until the ACBs were reimbursed. The respondent said it was awaiting the results of a construction report, 11 months after a treatment plan was submitted, yet, Ms. Highley testified the report was never actually commissioned. In my view, it is unfortunate Ms. Highley entered very few log notes when key decisions were being made. This created a lack of transparency as to how these errors occurred. I acknowledge it is not typical for an applicant with complex care to be cared for at home by his mother and this may have created unique administrative challenges for the adjusters. However, the applicant is an extremely vulnerable member of society and the respondent failed to adjust his file with the attention it deserved.
44I find that in this particular case, there is a need to deter the respondent’s unyielding behaviour. In my view, the applicant and his mother/guardian have been treated more like adversaries rather than clients who pay a premium for insurance coverage. Prior to the accident the applicant was a fully functioning employable member of society. Post-accident, his injuries were so glaringly severe that within four months he was determined to be catastrophically impaired by the respondent. A catastrophic determination is made when the impairment is permanent. The respondent had an obligation to determine the applicant’s current needs. It is unreasonable to expect that after being deemed catastrophically impaired, because of a permanent disability due to a traumatic brain injury, the applicant’s medical condition would improve so much that his need for accessible housing or a wheelchair accessible vehicle would no longer be warranted. I find the respondent’s handling of this file added unnecessary strife to an already devastating situation.
45I find the blameworthiness of the insurer’s conduct is apparent. In my view, it appears the adjuster who denied the first OCF-18 did not know or review the applicant’s file. The OCF-18 was submitted and denied on January 25, 2022. The following month, the adjuster requested updated medical records from case manager, Cori Snow, as the documents on file were eight months old. The adjuster did not realize the applicant had optional benefits until August 2022 even though it was stated in a log note as early as March 24, 2021. The adjuster questioned the permanency of the catastrophic determination when it too had been detailed in the log notes after the respondent deemed the applicant to have a catastrophic impairment without ordering an IE. I find the respondent blatantly failed in its responsibility to adjust the applicant’s claim with due diligence.
46The significant delay in the respondent’s handling of the applicant’s OCF-18 for accessible housing is another aggravating and critical factor in determining the quantum of the award. I am mindful of the finding of J.T. v Certas Home and Auto Insurance Company that saw the applicant succeed in having a home related cost deemed as incurred. I am persuaded of the parallels between that case and this one as the applicant, a catastrophically impaired and vulnerable person, experienced a nine-month delay from the respondent’s first EOB and the completion of its initial IE reports. In that case, Adjudicator Hines ruled the respondent failed in its duty to review all of the medical documentation available to it and granted an award of 25 per cent.
47In this case, the applicant waited 11-months for his IE report to be completed but the far greater delay he experienced was living through the unnecessary indignity of toileting in his family’s living room. Given the severity of the applicant’s injuries and the inaccessible nature of his pre-accident residence, I find the OCF-18 for an increase in rent was reasonable and necessary at the time it was submitted. Had the respondent determined the cost of renovating the applicant’s apartment and communicated that figure to the applicant, he could have moved directly into a safe, accessible dwelling directly from the hospital.
48I find the decision of G.P. v. Wawanesa Mutual Insurance is also relevant in my decision-making. Adjudicator Lester awarded the applicant, a catastrophically impaired person, a 30 per cent award due to the respondent’s mishandling of the file which included failure to consider the totality of the evidence and the financial hardship experienced by the applicant. In my view, there is a similarity to this case. The log note of adjuster, Cindy Cain, on August 6, 2021, five months post accident, documented a conversation with Ms. Snow in which it was stated there is not an expectation for a lot of change in the applicant’s condition except possibly to wean him off the oxygen. I have not been provided evidence the applicant has recovered from being immobile, non-verbal and dependent for all ADLs. Yet, the EOB issued December 7, 2022, 11 months after the OCF-18 was submitted, stated the applicant continues to recover therefore his long-term needs may change so a wheelchair accessible vehicle is not reasonable or necessary at this time. I find the respondent’s rigid view of the applicant’s health status is not consistent with medical evidence, not to mention, is highly insensitive to the applicant.
49Lastly, I find it concerning that the respondent asserts it adjusted the applicant’s file properly. Ms. Highley testified that the respondent only reversed its decision to approve the OCF-18 on the advice of counsel, and that had this not been the case, she would have maintained the denial in the December 7, 2022 EOB. Furthermore, she stated 11-months was not a significant amount of time and that the respondent took quick action after the IE came in. In my view, the respondent’s assessment of its actions highlights the need for a strong message of deterrence in this case. I find the swift decision-making following months of delays is not a substitute for acting in good faith.
50The only mitigating factor in favour of the respondent is that it chose to settle all issues in dispute ahead of the hearing. However, the approval of the OCF-18s shortly before the hearing does not undo the blameworthiness of the insurer’s past conduct.
The applicant is entitled to an award on the vehicle, rent and late ACB payment
51An award maybe granted up to 50 per cent of the amount to which a person is entitled with interest.
52The applicant submits he is entitled to the maximum award of 50 per cent, for both OCF-18s and the late ACB payment. The respondent did not provide a percentage but conceded that if an award is granted that it be on the vehicle only. It submits the home modification required detailed reports, related to the cost of renovating the claimant’s current residence, which were not provided.
53Given the applicant is catastrophically impaired and has a severe brain injury that requires a litigation guardian, I consider him to be a particularly vulnerable member of society. As a result of the compounding effect of the respondent’s errors and the funds the respondent has unreasonably withheld or delayed, I find the applicant is entitled to an award of 50 per cent of the cost of the vehicle, the difference in rent and the late ACB payment.
54The case law that I have cited granted awards from 50 to 25 per cent. In this case, I find the maximum award of 50 per cent is merited because of the respondent’s repeated unyielding behaviour that resulted in the applicant living and toileting in his family’s living room for months despite having optional benefits worth three million dollars. In my view, the respondent’s unrelenting need to quantify the applicant’s current and future medical condition, despite his permanent disability due to a traumatic brain injury, caused unnecessary strife and hardship to the applicant. I find the blameworthiness of the insurer’s conduct is apparent and an award of 50 per cent is appropriate.
55With regards to the new home and home modification, I decline to grant an award. I agree with the respondent’s submissions that I have not been provided with the cost to modify the applicant’s pre-accident home.
The difference in rent is deemed incurred if it has not been paid
56I find the difference in rent, from May 5, 2022 to December 7, 2022, is deemed incurred pursuant to s. 3(8) of the Schedule, if it has not been paid.
57Section 3(8) provides that if the Tribunal finds an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
58The applicant submits that if the Tribunal finds the respondent unreasonably withheld or delayed payments, that a finding of a deemed incurred expense pursuant to section 3(8) of the Schedule is warranted. The respondent disagrees that the entirety of the treatment plans should be paid based on s. 3(8). It relies on Pucci v. The Wawanesa Mutual Insurance Company (2020 ONCA 265) to point to the guiding principles of what determines an exception to the requirement that expenses must be incurred before they are payable by the insurer. The three exceptional requirements are:
a. payment for the benefit in issue must be payable under the SABS;
b. the insurer must have “withheld or delayed payment”; and,
c. the withholding or delaying of payment must have been “unreasonable”.
59Applying Pucci, I find the difference in rental cost, for the period of May to December 2022, is deemed incurred if the benefit has not been paid. The parties agreed it was not advisable for the applicant to return to his pre-accident inaccessible apartment, yet, the respondent failed to provide the applicant with a calculation, pursuant to s. 16(4)(c), that would have enabled him to move to an accessible location when he was released from the hospital on May 5, 2022. I find the respondent’s actions amount to an unreasonable withholding and delayed payment of the rental difference. In my view, the respondent’s unyielding behaviour resulted in the applicant living for many months in the living room of his former dwelling, despite having optional benefits which was missed by the respondent at the time this benefit was denied.
60I decline to deem incurred the $770,000.00 for a house purchase, $29,000.00 for renovations and up to $100,000.00 for a wheelchair accessible vehicle at this time. I find the applicant still has an opportunity to obtain and utilize these benefits as they were approved by the respondent on December 19, 2022.
61I decline to deem incurred the late payment of $1,753.50 for ACB as the respondent also issued payment for this benefit on January 6, 2023.
ORDER
62I order the respondent to pay 50 per cent of the cost for an accessible vehicle for $100,000.00, the difference in rent for $26,000.00 and ACB late payment of $1,753.50, plus interest, if any, in accordance with s. 10 of Regulation 664 due to its unreasonable withholding and delay in the payment of benefits to the applicant.
63I order the respondent to pay the difference in rental cost from May 5, 2022 to December 7, 2022, that I have deemed incurred pursuant to s. 3(8) of the Schedule, if payment is still owing.
Released: June 23, 2023
Janet Hueglin Hartwick
Adjudicator