Licence Appeal Tribunal File Number: 21-014314/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:
Arooj Aarooj
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Syed M. Raza, Counsel
For the Respondent:
Priyanka Monpara, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Arooj Aarooj (the “applicant”) was involved in an automobile accident on October 21, 2019, 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 TD General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
The Respondent’s submissions/evidence will be considered by the Tribunal
2I will not exclude the respondent’s submissions/evidence that were received on July 24, 2023, three days after the deadline for submissions.
3The Case Conference Report and Order (“CCRO”), dated December 2, 2022, was clear that the deadline for the respondent’s initial submissions was 14 calendar days prior to the hearing.
4Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.
5The applicant in her reply submissions submits that the respondent served/filed its submission at 6:07 PM on July 21, 2023. As such, the applicant argues that the submissions were received on July 24, 2023, which was 10 days before the scheduled hearing, which is in contravention of the CCRO.
6The respondent’s submissions were actually not received until July 24, 2023. Rule 6.5 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”) deems documents sent after 5:00 PM to have been received on the next day that is not a holiday. July 22 and July 23, 2023, were a weekend and as such are classified as a “holiday” in accordance with the Rules. Therefore, the respondent’s submissions were filed 11 days (not 10 days) before the scheduled hearing date.
7The applicant has not directed me to evidence of prejudice that was caused by this slight delay. I find that the respondent would suffer significant prejudice if its submissions/evidence were excluded for the purposes of this hearing, as it would not be able to defend the issues in dispute, and this would be disproportionate to its error. Moreover, I find that the applicant was able to respond to the respondent’s submissions in her reply submissions.
8In conclusion, I deny the applicant’s request to set aside the respondent’s submissions and evidence.
ISSUES
9The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week less post-accident income, from October 29, 2019, to date and ongoing?
ii. Is the applicant entitled to $1,656.70 for chiropractic services, proposed by Dr. Dev Sarathy, Spinal Touch Wellness Centre in a treatment plan/OCF-18 (“OCF-18”) submitted on June 26, 2020, and denied on July 7, 2020?
iii. Is the applicant entitled to $1,945.05 for physical therapy and massage services, proposed by Spinal Touch Wellness Centre in an OCF-18 submitted on November 10, 2021, and denied on November 26, 2021?
iv. Is the applicant entitled to $200.00 ($2,400.00 less $2,200.00 approved) for a catastrophic impairment assessment proposed by Alliance Diagnostics and Treatment Inc., in an OCF-18, dated April 29, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the respondent liable to pay costs pursuant to Rule 19 of the Rules?
RESULT
10I find that:
i. The proper income period to calculate the applicant’s IRB is the last completed taxation year prior to the accident. As such, the applicant is entitled to the amount of nil for pre-104 IRB.
ii. The applicant is entitled to post-104 IRB at the rate of $185.00 from October 19, 2021, to October 28, 2021, with applicable interest.
iii. The applicant’s entitlement to post-104 IRB from the time period of October 29, 2021, to date and ongoing is not in an issue in dispute as the respondent has already approved and is paying the benefit on an ongoing basis.
iv. The OCF-18 in the amount of $1,656.70 for chiropractic services was approved by the respondent on July 10, 2023. The applicant is entitled to interest in accordance with s. 51(4) of the Schedule.
v. The applicant is entitled to $200.00 for the costs of completing the OCF-19, with applicable interest.
vi. The applicant is not entitled to the remaining OCF-18 in dispute or interest.
vii. The respondent is not liable to pay an award and costs.
PROCEDURAL ISSUE
The Application for Determination of a Catastrophic Impairment (“OCF-19”) and Medical File Review Report, dated May 23, 2023, will be admitted into evidence
11I admit the OCF-19, and Medical File Review, dated May 23, 2023, as evidence for this hearing.
12The CCRO was clear that the deadline for documents not previously disclosed, but which the parties intended to rely upon for the hearing, was 80 calendar days after the case conference (February 20, 2023).
13The respondent submits that the issue of catastrophic impairment is not an issue in dispute for the purposes of this hearing and was specifically denied as being added as an issue in dispute. However, the respondent did not advise when this was denied. The respondent further submits that the applicant did not serve the OCF-19 and medical file review report until June 7, 2023, and it was prejudiced as it has not been provided with the opportunity to medically respond.
14The applicant in reply did not address this issue.
15While I agree that the OCF-19 and medical file review report was provided well outside the timeline stipulated in the CCRO, I am denying the respondent’s request to exclude this evidence. The OCF-19 and medical file review report is directly relevant to the issue of the medical benefits in dispute, and therefore meets the low threshold to be admitted into evidence, pursuant to s. 15(1) of the Statutory Powers Procedure Act RSO 1990, c S.22. However, this delayed production will go to the weight to be given to the evidence.
16Although I acknowledge that the respondent may have been prejudiced in its ability to obtain rebuttal reports, the appropriate remedy, rather than excluding the report, would be an adjournment to allow additional time to review the report and prepare a rebuttal. To my knowledge, such a request was not made.
17Accordingly, I decline the respondent’s request to exclude the OCF-19 and medical file review report.
ANALYSIS
What is the eligibility period for the IRB in dispute?
18I find that the applicant’s eligibility period for IRB does not commence until May 25, 2020, when she submitted the completed OCF-3 to the respondent.
19Section 36 of the Schedule outlines the process for claiming IRB. Section 36(2) states that an insured person must submit a completed OCF-3 with their application for a specified benefit pursuant to section 32. Section 36(3) also sets out the entitlement period for the IRB once the completed OCF-3 is received. Essentially, an insured person is not entitled to IRB for any period before a completed OCF-3 is submitted.
20The applicant in her initial submissions argued that she is entitled to IRB from the time period of October 29, 2019, to date and ongoing. She included two OCF-3s, dated November 26, 2019, and December 14, 2020, in her hearing brief. In her initial submissions, the applicant did not advise when the first OCF-3 was submitted to the respondent.
21The respondent submits that the OCF-3 dated November 26, 2019, was not submitted until May 25, 2020. It supports this claim by providing a copy of the correspondence, dated May 25, 2020, sent from the applicant’s representative to the respondent.
22In reply, the applicant submits that she submitted the OCF-3, on or about November 26, 2019, and relies on the OCF-3, dated November 26, 2019, to support her position.
23I find that the completed OCF-3 was received by the respondent on May 25, 2020. The applicant has directed me to evidence that the OCF-3, dated November 26, 2019, was sent to the respondent before this time. I acknowledge the applicant’s position that the OCF-3 is dated November 26, 2019, however, that does not mean it was sent on that date to the respondent. Section 36(3) sets out that the entitlement period for the IRB begins once the completed OCF-3 is received, not when it is dated.
Section 4(3) of the Schedule is applicable to the applicant
24I find that the applicant is subject to section 4(3) of the Schedule for calculating her entitlement to IRB.
25Calculation of IRB is outlined in s. 4 of the Schedule. To begin determining IRB, you must first establish the applicant’s gross annual or weekly income pursuant to s. 4(2) and 4(3) in the Schedule. Section 4(2) applies to insured persons who claim IRB pursuant to s. 5(1)1, which applies to claimants who were employed or recently employed at the time of the accident.
26Section 4(2)(3) states that if the person described in subparagraph 2(i) was self-employed for at least one year before the accident, the person may designate as his or her gross annual employment income the amount of his or her gross employment income during the last fiscal year of the business that ended on or before the day of the accident.
27Section 4(3) applies to those who claim IRB only on income from self-employment as outlined in section 5(1)2. Section 4(3) further provides that a self-employed person’s weekly income or loss from self-employment at the time of the accident is the amount that would be 1/52 of the amount of the insured’s income or loss from the business for the last completed taxation year as determined in accordance with Part I of the Income Tax Act (Canada).
28The onus is on the applicant to demonstrate that the IRB quantum she seeks is payable pursuant to the Schedule.
29The CCRO was clear that entitlement to IRB was not in dispute. However, there was a disagreement between the parties over quantum.
30Problematically, the applicant’s initial submissions provided no explanation of why IRB should be calculated based on the last 52 weeks instead of the last completed taxation year. Instead, the applicant summarized medical documentation and advised that she retained an accounting firm, S&T Accounting (“S&T”), who completed a report dated November 28, 2022.
31The respondent submits that the Schedule is clear that for applicants who were self-employed at the time of the accident, the weekly gross income is calculated utilizing their last taxation year. The respondent further submits that the applicant’s accounting report from S&T utilized the last 52 weeks prior to the accident as a basis for determining the weekly gross income as it resulted in a higher benefit payment. The respondent also submits that it retained Price Waterhouse Coopers (“PWC”), which correctly utilized the applicant’s last fiscal year prior to the accident as a basis for calculating her IRB quantum. This PWC report concluded that the IRB quantum for the pre-104 period was $0.00 per week.
32In reply, the applicant submitted that as she filed taxes as an individual taxpayer and not as a corporation, then there is no question that her fiscal year was different than the taxation year. The applicant further submitted that the use of the word ‘may’ in section 4(2)(3) of the Schedule be interpreted to mean that she can choose between the last 52 weeks or the last fiscal year for her entitlement to IRB.
33I agree with the respondent’s argument that the applicant should be subject to s. 4(3) of the Schedule, as the applicant was solely self-employed prior to the accident. Prior challenges to the interpretation of s. 4(3) have been tested without success before the Tribunal as cited by the respondent: K.D. v. Aviva Insurance Company, 2020 CanLII 27383 (ON LAT), V.H. v. Aviva Insurance Company, 2019 CanLII 130385 (ON LAT), and Oliveria v. Aviva General Insurance Company, 2023 CanLII 50621 (ON LAT).
34Although not binding on me, I agree with the interpretation of the Tribunal in K.D. v. Aviva Insurance Company. At paragraph 17 the Tribunal found:
“…although section 4(2) applies to self-employed persons, the reference to qualifying under section 5(1) means section 4(2) is only applicable where the self-employed person was also employed or recently employed in the time preceding the accident. This was reiterated in LAT decision 17-002366/AABS where the claimant was self-employed and employed on a part-time basis, thus allowing the claimant to choose between calculating IRB based on the most recent 52 weeks and the last fiscal year.”
35The evidence before me is that the applicant was self-employed at the time of the accident. I note that in her submissions, the applicant summarized the section 25 psychological assessment completed by Dr. Oren Gozlan, dated December 16, 2021, in which she reported that she worked part time as a radio show host prior to the accident. However, she provided no submissions or pointed me to evidence of this employment.
36As such, my finding that the applicant was self-employed prior to the accident is also supported by the following.
37First, in her application for accident benefits (“OCF-1”) the applicant advised that she was self-employed at the time of the accident.
38Second, the report prepared by S&T noted that the applicant was self-employed as an office manager since March 1, 2019, and a self-employed real estate agent since August 1, 2021. Moreover, S&T’s report was silent with respect to the applicant’s occupation as a part-time radio show host prior to the accident.
39Third, the report prepared by PWC also noted that the applicant was self-employed prior to the accident.
40Also, the applicant in her reply appears to concede that she was self-employed prior to the accident, as she raised no arguments to the contrary. While the applicant also submitted that she filed taxes as an individual taxpayer and not as a corporation, I find this is irrelevant to the issue of whether she was self-employed at the time of the accident and the applicability of s. 4(3) of the Schedule, especially given the above-referenced evidence which shows that she was self-employed at the time of the accident. Hence, I am satisfied on a balance of probabilities that the applicant was self-employed at the time of the accident.
41I am also not persuaded by the applicant’s argument that she should be allowed to choose to calculate her pre-accident income based on 52 weeks of self-employment before the accident. I am alive to the applicant’s position that s. 4(2)(3) of the Schedule does not imply that a person has to be employed and self-employed to only designate 52 weeks of her income before the accident.
42In my view, the applicant has misinterpreted ss. 4(2)(2) and 4(2)(3) of the Schedule. Although s. 4(2)(2) applies to self-employed persons, its reference to qualifying under s. 5(1) would mean that s. 4(2) is applicable only where the self-employed person was also independently employed or recently independently employed in the time preceding the accident. In the matter before me, the evidence shows that the applicant was solely self-employed at the time of the accident. As such, the applicant does not have a choice to elect between the last 52 weeks or the last complete fiscal year. With respect to s. 4(2)(3), that is only applicable if the applicant meets the criteria in s. 4(2)(2), which she does not. In short, no part of s. 4(2) applies to the applicant.
43I am also not persuaded by the applicant’s position that IRB should be calculated based on the last 52 weeks as she chose that option in the completed Employer’s Confirmation Form (“OCF-2”). The entitlement to IRB and the method of calculation is prescribed in the Schedule. Moreover, the OCF-2 does not grant any substantive or procedural right to the applicant at odds with the legislation. Therefore, I find s. 4(3) of the Schedule applies to the applicant.
44Section 4(3) of the Schedule is clear and unambiguous when it comes to establishing that IRB entitlement shall be calculated based on the last completed year of taxation, as noted in K.D. v. Aviva Insurance Company. I acknowledge the applicant’s submissions that the Schedule did not intend to punish claimants who did not work in the last fiscal year before the accident. However, although not binding on me, I agree with the Tribunal’s interpretation of s. 4(3) in K.D. v. Aviva Insurance Company.
45To sum up, the evidence before me is that the applicant was self-employed at the time of the accident, and therefore her IRB entitlement is to be calculated pursuant to s. 4(3) of the Schedule, which is the last completed taxation year.
The applicant is entitled to an IRB quantum of nil for pre-104 IRB
46I find that the applicant is entitled to an IRB quantum of nil for pre-104 IRB, as the applicant earned no income during the last completed taxation year in her self-employed business.
47As I have determined that the applicant is self-employed, then any IRB calculation must be based on s. 4(3) of the Schedule. The S&T report incorrectly calculated the applicant’s entitlement to pre-104 IRB on weekly earnings for the last 52-week period prior to the accident. This artificially inflated the base weekly IRB payable. The report prepared by PWC correctly applied the last completed taxation year for the applicant and since the applicant earned no income at that time, her entitlement to pre-104 IRB was nil.
48In any event, I note that both the reports of S&T and PWC noted that the applicant’s gross income from her self-employment in the last completed taxation year was $0.00. As such, there appears to be no dispute over the amount in the last completed taxation year for the self-employment.
49In accordance with s. 4(3) of the Schedule, the applicant is entitled to a nil quantum of pre-104 IRB for the time period of May 25, 2020, to October 18, 2021.
Post 104-IRB for the time period of October 29, 2021, to date and ongoing is not in dispute as the respondent has already approved and is paying the benefit
50I find that the applicant is entitled to post-104 IRB at the rate of $185.00 for the time period of October 19, 2021, to October 28, 2021. The remaining period is not in dispute as the respondent has already approved, paid the previously owed IRB and is paying IRB on an ongoing basis.
51Section 7(1)1(ii) of the Schedule states that the minimum weekly IRB after the first 104 weeks of disability is $185.00 per week.
52The applicant submitted that eligibility was not in dispute and the amount was to be determined by the Tribunal.
53The respondent submitted that on May 15, 2023, correspondence was sent to the applicant which advised that she was entitled to $15,407.86 in post-104 IRB for the time period of October 29, 2021, to May 4, 2023. The respondent submits that the correspondence also advised that post-104 IRB is payable on an ongoing basis at $185.00 per week, which the applicant continued to receive.
54In reply, the applicant raised no issues with respect to the respondent’s position or whether she was owed a higher quantum than $185.00 per week for post-104 IRB. I also note that the report prepared by S&T accounting also calculated the applicant’s entitlement to post-104 IRB at $185.00 per week. Therefore, since the respondent has approved the benefit, and the applicant has raised no issues over whether she is owed a higher quantum, the issue of post-104 IRB entitlement during this time period is not in dispute before the Tribunal.
55However, the respondent did not pay the applicant post-104 IRB from October 19, 2021, to October 28, 2021. The respondent’s correspondence, dated May 15, 2023, incorrectly identified the start period for post-104 IRB as October 29, 2021. This is contrary to both reports prepared by the accountants at S&T and PWC whom calculated the period for post-104 IRB commencing on October 19, 2021, and not October 29, 2021. As such, the applicant is entitled to $185.00 for the time period of October 19, 2021, to October 28, 2021, with applicable interest.
56I also take note that the respondent argues that the applicant never applied for Canada Pension Plan disability benefits (“CPP-D”), and it should be entitled to deduct CPP-D benefits from the applicant’s ongoing payable IRB. To support this position, the respondent relies upon the Financial Services Commission of Ontario (FSCO) case of Hua Li Pan v. Allstate Insurance Company of Canada, (“Li Pan”) FSCO A16-003705.
57Section 280(2) of the Insurance Act states that the insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). Subsection (1) refers to disputes regarding an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. If there is no denial, then there is no dispute. Once there is a denial, then there is a dispute and as per section 280(2) of the Insurance Act, the applicant or respondent can apply to the Tribunal to resolve the dispute.
58I am also not bound by Li Pan, and the facts are distinguishable as in that authority, the insurer had approved and was paying the benefit pending a determination of the correct quantum by FSCO.
59In the matter before me, there is no dispute over entitlement for post-104 IRB and the respondent has paid and is paying IRB on an ongoing basis as indicated in its correspondence dated May 15, 2023. The respondent has provided no submissions on how the Tribunal has jurisdiction to make a ruling over a CPP-D setoff when entitlement and amount of the benefit is not in dispute. I acknowledge the respondent’s correspondence, dated May 15, 2023, advised the applicant to apply for CPP-D benefits, and that there was an obligation to do so. However, the correspondence clearly advised the applicant that she would be receiving the post-104 IRB benefit on a bi-weekly basis, going forward. The correspondence makes no reference to the fact that quantum is in dispute but pending a resolution from the Tribunal.
60Also, in its own submissions, the respondent is seeking a dismissal of the application, as it argues that it has paid all IRB and the applicant continues to receive all IRB owed. Thus, as entitlement to post-104 IRB and the amount is not in dispute, the Tribunal has no jurisdiction to adjudicate over a potential CPP-D setoff.
61Thus, the applicant is entitled to post-104 IRB for the time period October 19, 2021, to October 28, 2021, and the remaining time period is not in dispute.
The applicant is entitled to interest for post 104-IRB for the time period of October 19, 2021, to October 28, 2021
62Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefit.
63Thus, the applicant is entitled to interest for her post-104 IRB payment from October 19, 2021, to October 28, 2021. The applicant is not entitled to interest for pre-104 IRB, as her entitlement is nil.
Treatment Plans
64To receive payment for a treatment and assessment plan pursuant to sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should 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.
The respondent has approved the OCF-18 in the amount of $1,656.70 for chiropractic services
65The applicant in her reply provided correspondence from the respondent, dated July 10, 2023, where it approved the proposed OCF-18. The applicant submits that she is entitled to interest and a special award on this basis. I will address the submission with respect to a special award and interest later in my decision.
The applicant is not entitled to the OCF-18 in the amount of $1,945.05 for physical therapy and massage therapy.
66I find that the applicant has not met her burden of proof to establish the OCF-18 in the amount of $1,945.05 is reasonable and necessary.
67The disputed OCF-18 pertains to physical therapy services to be provided by a chiropractor and massage therapy to be provided by a massage therapist.
68The applicant appears to be submitting that the respondent was non-compliant with ss. 38(8) and 38(10) but provided no rationale on how the respondent was non-compliant.
69The respondent submits that it was fully compliant with its obligations under the Schedule.
70The applicant provided no specific submissions as to why the denial letter, dated November 26, 2021, was non-compliant with either ss. 38(8) or ss. 33(10). It is trite to say that the Tribunal does not have a duty to sift through evidence in order to make the case for the applicant, since doing so would risk the Tribunal inappropriately acting as an advocate for a party instead of a neutral arbiter in a dispute. Thus, I find that the applicant has not established any failure by the respondent to comply with either section. I will now turn to the parties’ respective positions of whether proposed services are reasonable and necessary.
71The applicant submits that she has ongoing pain symptomology, and as a result, the proposed OCF-18 for physiotherapy services is reasonable and necessary. The applicant also submitted that physiotherapy was recommended by her family physician, Dr. Sherif Tawafross, however she did not direct me to the record, or a date in which this recommendation was made.
72The respondent submits that the applicant has failed to provide any clinical notes and records from a treating facility to demonstrate that treatment was assisting with her pain or that it was beneficial. In addition, the respondent submits that the applicant has sustained soft tissue injuries from the accident. The respondent submits that the applicant has not met her onus to demonstrate that the proposed services are reasonable and necessary. To this end, the respondent relies upon a s. 44 assessment completed by Dr. Yong-Kyong Michael Ko, physiatrist, dated January 7, 2022.
73I agree with the respondent. While the applicant still reports ongoing pain symptomatology, she has failed to show how the treatment plans are reasonable and necessary to address her pain complaints. Her submissions are silent on whether the treatment goals are reasonable, whether the goals are being met to a reasonable degree and whether the overall cost of achieving the goals is reasonable. Problematically, the applicant’s submissions were completely silent on the proposed massage services, nor did she provide a copy of the disputed OCF-18, and as a result, the respondent provided in its submissions.
74The applicant has fallen short of meeting her onus in proving the OCF-18 in dispute is reasonable and necessary.
75First, no treatment records have been provided by the treating facility, and no progress reports from the treating practitioner were submitted. The respondent directly raised the issue of the lack of clinic treatment records in its submissions. Despite providing reply submissions, the applicant did not provide such records or explain why they have not been provided. I am alive to the applicant’s submissions that she has ongoing pain, however without the records from the treating facility, she has not established whether the proposed services will reduce her pain.
76Second, the applicant also failed to refer me to the entry where Dr. Tawafross recommended physiotherapy. In any event, I have reviewed the records of Dr. Tawafross and note that he recommended physiotherapy for the applicant’s neck pain, right shoulder pain, back pain, and knee pain on November 13, 2019. However, this treatment plan was submitted nearly two years after this recommendation was made. The applicant has failed to persuade me how a recommendation made nearly two years before the disputed OCF-18 was submitted establishes that the proposed OCF-18 is reasonable and necessary. Moreover, I note that Dr. Tawafross made no recommendation with massage services on this date.
77Third, Dr. Ko met with the applicant and conducted a physical examination on December 21, 2021, and concluded there was no objective clinical evidence of an ongoing structural musculoskeletal injury or nerve impingement, and as such, the proposed services in the disputed OCF-18 were not reasonable and necessary. I also agree with the respondent that the medical documentation provided shows that after January 2020, the applicant did not complain of accident-related physical injuries to her family physician. Thus, the applicant has not led sufficient medical evidence to rebut Dr. Ko’s findings.
78As such, I find that the applicant has not discharged her evidentiary onus to demonstrate that the proposed OCF-18 is reasonable and necessary.
The applicant is entitled to the cost of completing the OCF-19
79I find the applicant is entitled to payment for the cost of completing the OCF-19 as it is reasonable and necessary for the completion of the standard form, which is in evidence, and s. 25(1)(5) of the Schedule states that reasonable fees charged for preparing an application for a catastrophic determination are payable. As there is no disagreement that the applicant’s catastrophic determination is in dispute and a valid OCF-19 is in evidence, it follows that this item is payable.
Interest
80I find that the applicant is entitled to interest with respect to the OCF-18 in the amount of $1,658.70 and for the cost of completing the OCF-19 form. The applicant is not entitled to interest for the remaining treatment plan in dispute.
81Section 51(2) of the Schedule provides that the respondent shall pay interest on overdue payments of benefits. Section 51(4) sets out how interest is calculated when an application before the Tribunal is settled.
82I find that in agreeing to pay the OCF-18 in the amount of $1,658.70, the respondent settled this issue within the meaning of s. 51(4) and must therefore pay interest pursuant to that subsection.
The respondent is not liable to pay an award
83I find that the applicant has not met her burden of proof that the respondent is liable to pay an award.
84The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent and interest of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
85It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.
86The applicant submits that all the financial documentation provided to S&T accounting for completion of the report had already been provided to the respondent. As such, she submits that the respondent’s attitude was in extreme bad faith and violated the spirit of the Schedule. The applicant also submits that the first time the respondent requested financial documentation from her was on October 19, 2022, and this is prejudicial to her. In her reply submissions, the applicant submitted that with respect to the OCF-18 in the amount of $1,656.70, an adverse inference should be drawn, and she is entitled to a special award as the respondent approved the benefit.
87The respondent submits that the applicant has been paid and continues to be paid all IRB owed. The respondent further submits that the applicant caused the delay in receiving IRB payments, as she did not provide adequate documentation in order to assess the quantum and she did not attend a scheduled insurer’s examination for a psychological assessment.
88With respect to pre-104 IRB, as I have already determined that the applicant was entitled to nil amount for this time period, it follows that no benefits were unreasonably withheld or delayed.
89Now turning to post-104 IRB, the applicant has not met her burden of proof that this benefit was delayed or unreasonably withheld as a result of the respondent’s conduct.
90First, the applicant did not send the financial documentation to the respondent until November 28, 2022, when the report was completed by S&T. I am alive to the applicant’s position that she enclosed a copy of the financial documentation in her hearing brief, that S&T relied upon to complete its accounting report. However, the applicant has not advised when this documentation was sent to the respondent, nor did she include proof of service for sending this documentation. In my view, enclosing a copy of the financial documentation only is insufficient to establish the documentation was actually sent to the respondent. Thus, I have no reason to disagree with the respondent’s assertion that it did not receive the financial documentation relied upon by S&T accounting in its report until the applicant submitted it to them on November 28, 2022.
91Next, upon receipt of the accounting report prepared by PWC, the respondent approved post-104 IRB for the time period of October 29, 2021, to date and ongoing. The applicant has provided no rationale on how this amounts to behavior that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. In fact, upon receipt of the financial documentation from the applicant, the respondent forwarded it to PWC to obtain an accounting report, which in my view does not amount to behavior that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
92I also disagree with the applicant that the respondent did not request financial documentation from her until nearly two years after the accident (October 19, 2022). I acknowledge the applicant in her reply submissions referred to section 36(4) of the Schedule and submitted that the respondent requested income documentation two years (i.e., October 19, 2022) after the accident, and as such it failed to adjust the claim in a timely manner. However, as noted in the eligibility section of my decision, the OCF-3 was not submitted until May 25, 2020.
93Moreover, the respondent sent a response to the OCF-3 on May 28, 2020, and advised that it required the following documentation: OCF-2, any other financial documentation required and that they had assigned PWC to calculate the quantum of IRB as the applicant was self-employed. The respondent’s subsequent correspondence, dated November 30, 2020, also advised the applicant that in order to calculate IRB, it required the documents requested by PWC. As such, the respondent had requested the financial documentation from the applicant as of November 30, 2020, and not October 19, 2022.
94The respondent also sent a section 33 request on April 19, 2022, requesting a number of financial documents from the applicant. As noted above, the applicant has not produced evidence that she provided the financial documentation to the respondent prior to producing the report by S&T.
95Therefore, I find that the applicant has not established that the respondent delayed or unreasonably withheld payment of her post 104-IRB.
96Now turning to the OCF-18 in the amount of $1,656.70, I find that the applicant has not met her burden to establish that the respondent unreasonably withheld or delayed the benefit. While I acknowledge the applicant’s position that the respondent did not conduct an insurer’s examination until December 21, 2021, and this was prejudicial to her, however she has provided no rationale on how she is entitled to an award on this basis. The applicant provided no submissions on how this amounts to behavior that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Nor did the applicant provide an explanation of how she was prejudiced.
97I also acknowledge the applicant’s position that the OCF-18 was approved on July 10, 2023, and that the respondent’s counsel still defended the denial of the OCF-18 in its submissions. However, the applicant provided no submissions on how this amounts to the respondent unreasonably withholding or delaying the benefit, which is the test for an award. In my view, the respondent’s counsel may not have been aware that the OCF-18 was recently approved, and the fact that the OCF-18 was approved prior to a decision being reached, does not in itself mean that the respondent unreasonably withheld or delayed the payment.
98In conclusion, the applicant has not established that the respondent unreasonably withheld or delayed payment of post-104 IRB and the OCF-18 in the amount of $1,656.70. Thus, the respondent is not liable to pay an award.
The respondent is not liable to pay costs
99I find that the respondent is not liable to pay costs to the applicant.
100According to the provisions of s. 19 of the Rules, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.
101The applicant did not refer to s. 19 of the Rules, nor did she provide submissions of how the respondent’s conduct rose to the level of being unreasonable, frivolous, vexatious, or in bad faith. Other than stating the respondent’s submissions were late, the applicant did not address how these late submissions rose to the level for costs to be awarded by the Tribunal. Accordingly, I find that the applicant has not established that costs are warranted.
ORDER
102For the reasons outlined above, I find that:
i. The proper income period to calculate the applicant’s IRB is the last completed taxation year prior to the accident. As such, the applicant is entitled to the amount of nil for pre-104 IRB.
ii. The applicant is entitled to post-104 IRB at the rate of $185.00 from October 19, 2021, to October 28, 2021, with applicable interest.
iii. The applicant’s entitlement to post-104 IRB from the time period of October 29, 2021, to date and ongoing is not in an issue in dispute as the respondent has already approved and is paying the benefit on an ongoing basis.
iv. The OCF-18 in the amount of $1,656.70 for chiropractic services was approved by the respondent on July 10, 2023. The applicant is entitled to interest in accordance with s. 51(4) of the Schedule.
v. The applicant is entitled to $200.00 for the costs of completing the OCF-19, with applicable interest.
vi. The applicant is not entitled to the remaining OCF-18 in dispute or interest.
vii. The respondent is not liable to pay an award and costs.
Released: February 5, 2024
Tanjoyt Deol
Adjudicator