Licence Appeal Tribunal File Number: 21-003914/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:
Talminder Rattu
Applicant
and
XL Specialty Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Kendall Andjelkovic, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Talminder Rattu, the applicant, was involved in an automobile accident on October 6, 2020, 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, XL Specialty Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to interest for overdue payments for the income replacement benefit (“IRB”) from October 6, 2020 to October 5, 2021 and ongoing?
ii. Is the applicant entitled to attendant care benefits of $2,175.00 per month from October 6, 2020 to date and ongoing?
iii. Is the applicant entitled to $2,724.15 for physiotherapy services, recommended by Alex Muir Wellness in a treatment plan dated June 2, 2021?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow I find that:
i. The applicant is entitled to interest for the overdue payments of IRBs in the amount of $979.92;
ii. The applicant is not entitled to attendant care benefits for the period in dispute, as he has not demonstrated that the benefit was incurred;
iii. The applicant is not entitled to the treatment plan for physiotherapy services;
iv. The applicant is entitled to an award under s. 10 of Regulation 664.
PROCEDURAL ISSUES
4Despite the Case Conference Report and Order dated April 13, 2022 (“CCRO”) providing a timeline for the written submissions of the parties, with the final submissions to be the reply of the applicant, the respondent subsequently filed its own reply submissions (“sur-reply”). By email to the Tribunal dated December 12, 2022, the applicant disputed the respondent’s filing of a sur-reply and requested that these submissions be struck and not considered as part of this written hearing.
5The respondent submits that the CCRO simply provides a timeline and that it does not forbid it from filing its own reply submissions. It contends that there were a number of errors in the applicant’s reply submissions which had to be corrected by way of sur-reply.
6I find that the respondent’s sur-reply will be considered in part. The applicant in his reply raised for the first time the fact that attendant care benefits were provided by a family member, information that was not included in his initial submissions. The respondent’s sur-reply responds to this issue. Thus, the portion of the sur-reply responding to the issue of attendant care benefits will be considered, to ameliorate any procedural unfairness concerns or perceived unfairness with regard to the applicant’s case-splitting.
7The balance of the sur-reply will not be considered, nor will it form a part of this written hearing. The respondent provided these submissions without an order, without leave, and without bringing a motion. Although the respondent submits that there is nothing in the CCRO prohibiting a sur-reply, it is well understood by the parties and their counsel that there is no right to a sur-reply, and it may be allowed by the Tribunal, however, leave from the Tribunal must be obtained. The request for leave to file a sur-reply falls not only within the Tribunal’s own rules to ensure procedural fairness, efficiency, and consistency, but within the provisions of the Statutory Powers Procedure Act, to set procedures and prevent an abuse of process. The respondent did not seek leave and thus has provided no basis for the Tribunal to grant the respondent leave to file a sur-reply to the issues in dispute.
ANALYSIS
The applicant is entitled to interest on the overdue payment of IRBs
8The applicant submits he is owed interest for overdue IRB payments, pursuant to s. 51 of the Schedule. Entitlement and quantum of the IRBs are not listed as issues in dispute in this hearing, and the applicant does not appear to be arguing that he is owed any outstanding amount of the actual IRB payment from the respondent. Rather, the applicant contends that the respondent was persistently late in providing IRB payments over the course of his claim, and that the respondent did not provide any interest on such late payments.
9The applicant provided an example where two significant IRB payments were delayed by months. He submits correspondence between his representative and the adjuster, establishing that on February 20, 2021, the respondent confirmed the applicant’s entitlement to IRBs and stated that the applicant would receive two cheques totalling $3,315.14, covering the period from the date of the accident to February 24, 2021. The applicant submits that these two payments were not received until months later, on September 17, 2021 and October 1, 2021.
10The applicant also made a more general submission that he “continues to receive income benefit payments 2-6 weeks past due on each occasion”. Although the applicant submits various emails indicating that his representative continued to request various outstanding IRB payments from the respondent throughout 2021 and 2022, the applicant has not provided specific submissions detailing the exact amounts that were delayed and the dates these amounts were eventually paid.
11The respondent concedes that interest is owed to the applicant and submits that it has calculated the interest owed as being $979.92. The respondent asserts that this amount was calculated on the outstanding amount of $3,315.14, in accordance with s. 51 of the Schedule at 1%, compounded monthly from the date of the accident, to the date of the written hearing. It states that it is agreeable to paying the applicant this amount.
12In his reply submissions, the applicant disputes the amount of interest calculated by the respondent and argues that as the calculation was not completed by a professional accountant, “the interest owing must be re-evaluated”. However, he does not provide any alternative amount for the interest owed. No additional specific submissions were provided to quantify what the proper interest amount would be. Nor did the applicant clarify his general submission that all other IRB payments were being paid 2-6 weeks past due.
13The onus rests with the applicant to particularize or quantify his claim for IRB interest or to provide sufficient detail to enable such interest to be calculated, particularly where the applicant disputes the accuracy of the respondent’s submission. The applicant has failed to do either. It is not sufficient to make general statements such as “all payments are being made 2-6 weeks past due”, or to refuse to accept the respondent’s calculation without providing an alternative amount. Given the applicant’s failure to particularize the IRB interest amount, I am persuaded by the respondent’s submissions and calculation of the outstanding amount of interest. In the absence of any clarifying submissions from the applicant, I find the outstanding interest on the delayed IRB payments to be $979.92.
Attendant Care Benefits
14I find that the applicant is not entitled to attendant care benefits (“ACBs”), as he has not demonstrated that the services were incurred.
15Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACB services provided by an aide or attendant.
16Section 3(7)(e) of the Schedule provides guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.
17The applicant has not provided any submissions or evidence as to whether these benefits were incurred under any of the prongs of s. 3(7)(e). He provides a general statement that he “received assistance from family members”. However, he has led no evidence in support of this general statement, whether by way of invoices, promissory notes, affidavits speaking to services provided, the person proving the care, level of care or the rate of care. Moreover, if the person who provided ACBs is a family member, as opposed to a professional service provider, any ACBs payable are limited to the economic loss incurred by the family member. An “economic loss” is a factual determination. No submissions, evidence or details of any such loss were provided by the applicant.
18Accordingly, as it is the applicant’s burden, there is no evidence before me to find that he received the goods or services to which the ACB expenses relate, that he has promised to pay, or is legally obligated to pay any expenses, or that any person sustained an economic loss as a result of providing the services. Further, the applicant has not offered analysis on why s. 3(8) may apply to deem the expenses incurred.
19As such, the applicant has failed to establish that the ACBs were incurred, and accordingly, I find that no ACBs are payable to the applicant.
The applicant has not established entitlement to the OCF-18 dated June 2, 2021, for physiotherapy services
20The applicant submits that he is entitled to a treatment plan in the amount of $2,724.15 for physiotherapy services. The respondent argues that such a treatment plan does not exist, and that the applicant has not led any evidence that an OCF-18 dated June 2, 2021 in the amount of $2,724.15 was ever submitted to or denied by the respondent.
21I agree with the respondent’s submissions that the applicant has failed to lead any evidence of the treatment plan in dispute. The applicant has not submitted a copy of the OCF-18 in dispute or a denial letter as evidence for this written hearing. The respondent directly raised the issue of the lack of evidence of the OCF-18 in its submissions. Despite providing reply submissions, the applicant failed to include a copy of the OCF-18 in dispute, or the applicable denial letter in his materials. Rather, the applicant simply states that the OCF-18 “was included in the LAT application as part of the issues in dispute”.
22I do not find the applicant’s submissions to be persuasive. Firstly, it is not sufficient to simply reference evidence filed with the application. The CCRO explicitly states that any documents previously filed with the application must be resubmitted for the hearing. The applicant has failed to adhere to this order. Moreover, not only did the applicant fail to provide a copy of the OCF-18 itself, he also did not provide any specific submissions of the details of the treatment plan, such as the stated goals of treatment or the treatment modalities.
23To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant must identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. Without any information about the treatment plan in dispute, the applicant has failed to meet this burden and as such, I find that it is not payable.
The applicant is entitled to an award
24The applicant seeks an award under s. 10 of Regulation 664, due to the respondent’s persistent late payment of IRBs. He contends that his first two IRB payments were received four and six months late, and that such late payment continued on a bi-weekly basis. The applicant argues that such delays clearly indicate the respondent’s lack of due diligence to his claim.
25In response, the respondent states that there were only occasional delays in the payment of IRBs, and that these payments were typically advanced on time. It argues that to the extent there have been inconsistencies in the payment of IRBs, this has been only through inadvertence and that this would not rise to the very high standard required to attract an award.
26I find an award is appropriate. It appears that the respondent concedes that at a minimum, the initial two IRB payments were provided with a significant delay, as in its submissions, it has agreed to pay interest for the delayed payment up until the date of the written hearing. Further, the correspondence submitted by the applicant clearly shows that such delays were not an isolated incident, but that his representative was forced to contact the respondent multiple times in 2021 and 2022, in an attempt to receive outstanding IRB payments. I agree with the applicant that these delays are an unreasonable withholding of a benefit.
27Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Such an award is to be granted with respect to the amount to which the person was entitled at the time of the award. I note that in this written hearing, non-payment of IRBs was not an issue in dispute. Rather, the applicant was only claiming non-payment of interest relating to late IRB payments. As such, an award may only be granted with respect to the outstanding interest payments, as no other benefit or amount is presently owing which could form the basis of an award.
28As such, I find that the applicant is entitled to an award in the amount of $244.98, representing 25% of the total benefits payable, being the outstanding interest payments, due to the respondent’s unreasonable withholding and delay of the payment of the applicant’s IRBs.
ORDER
29For the reasons outlined above, I find that:
i. The applicant is entitled to the interest for overdue payments of IRBs in the amount of $979.92;
ii. The applicant is not entitled to attendant care benefits for the period in dispute;
iii. The applicant is not entitled to the treatment plan for physiotherapy services;
iv. The applicant is entitled to an award under s. 10 of Regulation 664 in the amount of $244.98.
Released: July 5, 2023
__________________________
Ulana Pahuta
Adjudicator