21-008274/AABS

Licence Appeal Tribunal File Number: 21-008274/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:

Fahmida Bashiruddin

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Julia Fogarty

APPEARANCES:

For the Applicant:

Fahmida Bashiruddin, Applicant Gianluca Schepis, Paralegal

For the Respondent:

Irina Sfraniog, Counsel Vasiola Bibolli, Counsel

Court Reporter:

Devon Makse

HEARD by Videoconference:

April 18, 2023

OVERVIEW

1Fahmida Bashiruddin, the applicant, was involved in an automobile accident on September 30, 2018, 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, TD General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2I take notice that on March 17, 2020, Ontario declared a provincial state of emergency under the Emergency Management and Civil Protection Act R.S.O. 1990, c.E.9 ordering the closures of many businesses and facilities to limit the spread of COVID-19. Shutdowns, extra safety requirements and more continued until June 11, 2022.

3While this was taking place the applicant testified that she continued in her employment as an essential worker. In this capacity, she worked within the vicinity of COVID-19 samples as a lab technician.

4On March 26, 2020, the respondent contacted the applicant about scheduling in-person s. 44 assessments to determine her eligibility to receive benefits. These assessments were rescheduled multiple times due to the applicant’s refusals to attend.

5The inability to conduct assessments culminated in the respondent deeming that the applicant was to remain within the Minor Injury Guideline (MIG) until such time further information could be provided or an assessment conducted that would justify removal from the MIG. At a later date when this was complied with the applicant was then removed from the MIG.

6This hearing concerns how the applicant’s claim was adjusted leading up to the insurer determining the applicant would remain in the MIG and the interest on an outstanding but approved invoice.

ISSUES

7The parties determined the issues in dispute for the hearing to be the following:

i. Is the applicant entitled to interest on the OCF-18 proposed by Dr. Bodenstein; approved on April 3, 2023 but not paid; for a psychological assessment and, if so, at what quantum and during what period would interest accrue?

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

RESULT

8The applicant is not entitled to an award under s. 10 of Regulation 664; and

9Pursuant to s. 51 of the Schedule, the applicant is entitled to interest for the period of April 4, 2023 until payment of this plan is received from the insurer, at the rate of 1% per month, compounded monthly and prorated by day, to the date on which the overdue amount is paid.

ANALYSIS

10I find that the evidence does not establish that the applicant is entitled to a s. 10 award under Regulation 664 because the respondent’s response was reasonable and proportionate when it followed the provisions set out in the Schedule given the information it had at its disposal at the time. Additionally, the respondent showed great flexibility in its many attempts reschedule the section 44 assessments and its accommodations at each juncture.

11Section 10 of Regulation 664 reads that 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 Accidents Benefits Schedule, may award a 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 interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

12However, this must be read in conjunction with the following qualifying caselaw. In S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) at paragraph 35 sets out that the legal test to determine if a s. 10 award is appropriate is whether the respondent’s conduct is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” This is a heavy burden to be met.

13The applicant argued that the following conduct warranted a section 10 award:

i. After multiple correspondence from the applicant, the respondent deemed the applicant would remain within the MIG due to non-attendance at multiple assessor examination appointments;

ii. The respondent did not agree to a paper review of the applicant’s medical records and instead insisted on in-person attendance for an assessor’s examination; and

iii. The respondent did not offer to conduct the assessments virtually or over the phone during the pandemic.

14The respondent argues that the administration of the claim followed the Schedule and after many attempts to contact the applicant and arrange for an assessment it deemed the applicant to be within the MIG. This decision was then later reversed as soon as the applicant attended an assessment. The respondent also argues that all safety precautions were taken by the facilities and alternative arrangements were available, except for a paper review. The respondent insisted that an in-person assessment was needed to provide the context needed to be able to determine if the applicant was to be removed from the MIG.

15I find that the respondent’s conduct was reasonable and proportionate given the specific facts of this case. The applicant’s testimony that she was unable to proceed with in-person assessments due to fear for her well-being during the pandemic is not realistic since she worked in a lab where she came into contact with COVID-19 samples on a daily basis.

16Based on the correspondence before the Tribunal, I find the respondent made accommodations for the applicant to attend but the applicant outright refused to attend or suggested a scheduling conflict. As such, the respondent responded proportionately in refusing to remove the applicant from the MIG until after an assessment was conducted, pursuant to s. 44 of the Schedule.

17The respondent insisted on an in-person assessment but also suggested in its letters of March 26, 2020 forward that “alternate arrangements” were available if the applicant contacted the assessment facility directly. There was no evidence before me that the applicant ever did so or suggested she was open to proceeding by alternate means other than by paper review.

Insurer’s efforts to acquire information to gauge the applicant’s claim

18Upon receipt of the applicant’s claim, pursuant to s. 36(4) of the Schedule, the insurer appropriately requested that the applicant attend an insurer’s examination in a letter dated March 26, 2020. This letter states, “if your attendance is required and you are unable to attend the assessment date(s), please contact the vendor Cira Health Solutions, at (416) 599-5991 to reschedule or make alternate arrangements.”

19The respondent similarly wrote to the applicant on May 5, 2020; June 2, 2020; and July 8, 2020 seeking to schedule or reschedule appointments for assessments. Each letter enclosed the same clause that provided the applicant with the opportunity to contact the vendor to reschedule or make alternate arrangements. It was the position of the respondent, that I found to be persuasive, that alternate arrangements would have included virtual assessments.

20This was met with refusals to attend by the applicant on May 13, 2020; July 23, 2020; August 7, 2020; September 4, 2020; for the following reasons:

i. Scheduling conflict;

ii. Will not attend during COVID-19;

iii. Does not feel safe as a senior to attend a medical facility during COVID-19;

iv. Feels the documents provided are sufficient to establish that the applicant should be removed from the MIG and any s.44 assessment to determine if she should be removed from the MIG is unreasonable and unnecessary; and

v. Wants to proceed by paper review of her medical records only instead of an assessment.

21In response the respondent contacted the applicant on the following dates:

i. On July 29, 2020, the respondent wrote to the applicant that it could not approve an OCF-18 submitted by Eyal Bodenstein on the basis that it believed the medical documentation the insurer currently had was not enough to allow them to determine if the extent of the applicant’s injuries would remove the applicant from the MIG. The respondent renewed its request for assessment and scheduled an assessment to more specifically address the denied treatment plan. This letter also details that the respondent “will make a determination that you are not entitled to any goods or services described in the Treatment Plan if you fail or refuse to participate with the examination.”

ii. On August 5, 2020, the respondent again reached out to reschedule the orthopaedic assessment. The applicant requested that the last appointment be rescheduled due to a conflict with a religious holiday. Again, attendance was indicated as required. This assessor’s name is noted as Dr. Greg Jaroszynski. This letter invites the applicant to contact the vendor, Cira Health Solutions, if there are any “questions or concerns about the examination or conflicts with the examination”.

iii. On August 27, 2020 the respondent reaches out again to reschedule the s.44 assessment. Again, attendance was indicated as required. There is a further warning that “we will make a determination that you are not entitled to any goods or services described in the Treatment Plan if you fail or refuse to participate with the examination.”

iv. On September 9, 2020 the respondent writes to the applicant describing that health and safety protocols are in place at the assessment facility to address Covid-19 concerns. The respondent states that the assessments will not be rescheduled a further time and that if the applicant again chooses not to attend she will be “held in non compliance” and her “medical rehabilitation benefits will remain subject to the limits under the Minor Injury Guideline”.

22On September 21, 2020 the respondent sent a “no show notice” to the applicant for missing the insurer’s examination scheduled with Dr. Greg Jaroszynski on September 11, 2020.

23On October 7, 2020 the respondent sent a further letter to the applicant to advise that she missed two assessments, the September 10, 2020 examination with Dr. Amena Syed and the September 11, 2020 examination with Dr. Greg Jaroszynski. As a result, the applicant was non-compliant with the insurer’s requests for assessments.

Findings on s. 10 of Regulation 664

24The applicant argues that the respondent’s response was inflexible and excessive by not suggesting and booking the assessments by alternative means, accepting the medical evidence as it was to remove her from the MIG or proceeding with a paper review. I find that the respondent was very flexible in its many attempts to garner the applicant’s compliance with an assessment, its response when the applicant failed to do so over a period of months and that, in good faith, it did make alternate means available in their correspondence dated March 26, May 5, June 2 and July 8, 2020.

25On September 4, 2020, approximately 5 months and 10 days after the first correspondence from the respondent seeking to schedule an assessment, the applicant asked for the assessment to proceed by the assessor via paper review. I find that COVID-19 is not a valid reason, on its own, to not work collaboratively with the insurer over a span of time approaching half a year.

26The applicant suggested in her correspondence of May 13, 2020 that she will not attend her assessment due to the pandemic. Her later reasons then escalate to not feeling comfortable attending any medical facility in her letters dated July 23, August 7 and September 4, 2020. During this same time period, it was the applicant’s testimony that she was working as a lab technician in a medical facility. As such, the applicant’s assertions that she was uncomfortable or would not attend a medical facility lack are not reasonable or persuasive since she regularly did so in her employment.

27I find that the respondent behaved reasonably in its attempts to exercise its rights under s. 44 of the Schedule and secure an assessment to make a fair determination on the applicant’s claims. Further, the respondent reconsidered its initial denial and reversed its decision at a later date when the applicant did comply. In my view, this does not rise to the level of conduct set out in S.M. v. Unica Insurance. As such, the applicant’s claim for a s.10 award is dismissed because the respondent’s conduct was not excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The respondent acted in a reasonable manner in line with the rules set out in the Schedule.

Interest

28I find that the evidence supports that interest on the OCF-18 for a psychological assessment submitted by Dr. Bodenstein should accrue from April 4, 2023 onwards. I find this compound interest will be based on the principal amount approved by the insurer and the accrued interest will continue until the date on which the overdue amount is paid. The rate of interest is set out in the Schedule as 1% per month.

When does the payment become overdue?

29In Zacharias v. Zurich Insurance Company, 2013 ONCA 482, at paragraph 38, the Court of Appeal held that the legislative intent of the Schedule’s compound interest was to “compensate insureds for the loss of the time value of money and to encourage insurers to pay accident benefits promptly.”

30In Van Galder v. Economical Mutual Insurance Co., 2015 ONSC 3261 at para 14, the Court held that the Schedule’s scheme gives the insurer the obligation to investigate potential claims and places on it the risk of delay in payment of benefits. As a result, the insurer could not argue prejudice or unfairness arising from the obligation to pay compound interest. Van Galder further clarifies that there is no longer an interest-free period of payment delay and that the interest provisions in the legislation are intended to encourage an insurer to pay benefits in a prompt fashion since many insured persons are not in a position to pay for supplementary treatments or services out of their own resources.

31When the benefit became payable is the point in which the benefit becomes due and on the following day that amount owed becomes overdue. The benefit was approved on April 3, 2023. When the payment was not received by April 4, 2023, the payment became overdue. The compound interest which begins to accrue at this point is not a penalty but rather it is compensation to the insured person for the loss of the time value of the money.

32As such, interest will be accrue from April 4, 2023 until the date on which the overdue amount is paid and the onus is on the insurer to promptly make this payment.

What quantum of interest?

33Section 51(2) of the Schedule provides that if payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue. This is to be read in conjunction with subsection (3) which provides that interest is payable at a rate of 1% per month, compounded monthly, from the date on which the amount becomes overdue until the earlier of two dates – when the amount overdue is paid or the date in which interest becomes payable under subsection (4). Since this treatment was approved subsection (4) does not apply.

34In this case the insurer approved the treatment plan and the submitted invoice on April 3, 2023. It was at this point that the payment became due. As such, this compounded interest begins to accrue at 1% per month, prorated by day, from April 4, 2023 onwards until the respondent pays the overdue balance.

35The interest that accrues will be compounded monthly and then prorated to the date payment is made by the insurer. The monthly compounded interest will include both the initial approved amount as well as any interest that accrued in the prior month or months leading up to payment by the insurer.

ORDER

36I find that:

i. The applicant is not entitled to an award under section 10 of Regulation 664; and

ii. The applicant is entitled to interest for the OCF-18 proposed by Dr. Bodenstein for a psychological assessment on the approved overdue payment of $2,000.00 for the period of April 4, 2023 to the date on which the overdue amount is paid at the rate of 1% per month, with the principal and interest compounded monthly.

Released: July 11, 2023

__________________________

Julia Fogarty

Adjudicator