Licence Appeal Tribunal File Number: 22-011676/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:
Derek Bergstrom
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Nigel D'Souza, Counsel
For the Respondent: Geoffrey Keating, Counsel
HEARD: By way of written submissions
OVERVIEW
1Derek Bergstrom, the applicant, was involved in an automobile accident on January 2, 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, TD General 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 as listed in the Case Conference Report and Order dated June 5, 2023 are:
Is the applicant entitled to a non-earner benefit of $185.00 per week from January 30, 2020 to the 104 week mark?
Is the applicant entitled to $798.50 for physiotherapy services, proposed by Lionel Pereira in a treatment plan dated September 30, 2020?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3From the parties’ submissions, it appears that the treatment plan (“OCF-18”) in the amount of $798.50 for physiotherapy services is no longer in dispute. In its hearing submissions, in reference to this OCF-18, the respondent confirmed that the “Applicant is entitled to these medical benefits”. Further, in his reply submissions, the applicant no longer sought an order for the entitlement to this OCF-18 but rather, requested an award for the “OCF-18 previously in dispute”. Since it appears that the issue of entitlement to the OCF-18 dated September 30, 2020 is no longer an issue in dispute, it will not be considered as an issue in this written hearing.
RESULT
4I find that:
i. The applicant is entitled to payment of a non-earner benefit from October 23, 2020 to December 30, 2021, plus interest in accordance with s. 51 of the Schedule; and
ii. The respondent is not liable to pay an award under Regulation 664.
ANALYSIS
Non-Earner Benefits (“NEBs”)
5In his hearing submissions, the applicant confirmed that he would not be providing any submissions on his substantive entitlement to NEBs. Rather his arguments solely related to technical or procedural breaches of the respondent’s denial notices.
Procedural requirements of s. 36(4) of the Schedule
6I find that the applicant is entitled to payment of NEBs for the period from October 23, 2020 to December 30, 2021, due to the respondent’s non-compliance with s. 36(4) of the Schedule. The applicant concedes that his Disability Certificate (“OCF-3”) was not submitted to the respondent until October 23, 2020. Therefore, he agrees that there was no entitlement to NEBs prior to this date.
7Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3 for NEBs, the insurer shall:
a) Pay the specified benefit;
b) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) Send a request to the applicant under s. 33(1) or s. 33(2).
8The applicant submits that both of the respondent’s denial notices, dated October 28, 2020 and December 17, 2021 were non-compliant with s. 36(4)(b) of the Schedule.
9I agree with the applicant that the October 28, 2020 correspondence did not provide medical and any other reasons why the respondent did not believe the applicant was entitled to the NEBs, as required by s. 36(4)(b). In its stated reasons, the respondent did not specify that it did not believe that the applicant was entitled to NEBs. I agree with the applicant’s submissions that the letter instead stated that the respondent was “unable to determine if” the applicant was eligible for NEBs. It further requested the applicant’s attendance at s. 44 insurer’s examinations to “assist us in determining your eligibility”. As such, the October 28, 2020 denial did not make a determination on entitlement as required by s. 36(4)(b).
10The applicant cites a number of Tribunal decisions, including S.V. v Aviva Insurance Canada, 2020 CanLII 40332 (ON LAT) and Wu v Aviva General Insurance Company, 2023 CanLII 50592 (ON LAT) in support of his argument that the October 28, 2020 letter was non-compliant, as it did not make a determination on the applicant’s eligibility to NEBs. The respondent argues that the decisions cited by the applicant are irrelevant, as they were decided prior to the release of the Court of Appeal decision Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78. It submits that in Varriano, the Court of Appeal found that medical reasons are not required in conjunction with the termination of a specified benefit if a non-medical ground was the reason for the determination.
11I am not persuaded by the respondent’s argument that the reasoning in Varriano is applicable in this case. In Varriano, the issue in the denial notices was whether medical reasons must be provided in accordance with s. 37(4) of the Schedule, in addition to any other non-medical ground. However, in the present matter the issue raised by the applicant is that the respondent’s denial notice did not make any determination on entitlement, not that a non-medical reason for the denial had been provided. I agree with the applicant and am persuaded by his cited decisions, namely S.V. v Aviva Insurance Canada and Wu v Aviva, which found that the insurer is required to provide the reasons why it was denying the benefit. In the present matter, the respondent did not actually state that it was denying the benefit, but rather, clearly stated that it had not yet made the determination as to entitlement. In my view, the October 28, 2020 letter was not compliant with s. 36(4)(b) of the Schedule.
12I further find that the respondent’s subsequent letter dated December 17, 2021 was also non-compliant with s. 36(4)(b) of the Schedule. Unlike the October 28, 2020 denial, this correspondence did provide a clear determination on NEB entitlement, clearly stating that “you are not entitled” to NEBs. However, I agree with the applicant that a “medical and any other reason” for the denial was not specified. Rather, the respondent simply stated that it was enclosing the s. 44 reports of its assessors and that “You are encouraged to review and discuss this report with your treating health practitioner”. No details as to the examiners’ findings were specified. I agree with the applicant that simply referencing a s. 44 report and suggesting that the applicant discuss it with his practitioner does not provide an unsophisticated party with an understanding as to why his claim was being denied, as specified in 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).
13Given that the respondent did not provide a s. 36(4) compliant notice, pursuant to s. 36(6) of the Schedule, NEBs are payable from October 23, 2020 to 104 weeks post-accident, being December 30, 2021.
Interest
14The applicant is entitled to interest in accordance with s. 51 of the Schedule for the payment of NEBs from October 23, 2020 to December 30, 2021.
Award
15The applicant sought an award under s. 10 of Regulation 664 for 50% of the amount of the NEBs owed and the OCF-18 previously in dispute. He submits that the respondent unreasonably kept him within the Minor Injury Guideline (“MIG”) until December 2021, and improperly denied the OCF-18 in dispute and his claim for NEBs. Under s. 10, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
16I find that the applicant has not established a basis for an award. Although the applicant submits that the respondent unreasonably kept him within the MIG for almost two years post-accident and denied his claim for NEBs, the respondent has submitted evidence that its s. 44 assessments had twice been rescheduled due to the applicant’s request. As such, I note the respondent’s submissions that it was unable to assess the applicant’s entitlement to benefits until August 2021. Further, the applicant has not led evidence of his substantive entitlement to NEBs or the treatment plan in dispute. Without such evidence, I am not able to assess whether payment of benefits was unreasonably withheld.
17Finally, although the applicant points to the respondent’s procedural non-compliance with s. 36(4) of the Schedule, the punitive remedy for such non-compliance is already provided in s. 36(6) of the Schedule. The applicant has not established that an additional award is warranted, in addition to the payment of the benefit mandated by s. 36(6).
ORDER
18For the foregoing reasons I find that:
i. The applicant is entitled to payment of NEBs from October 23, 2020 to December 30, 2021, plus interest in accordance with s. 51 of the Schedule;
ii. The respondent is not liable to pay an award under Regulation 664.
Released: November 5, 2024
Ulana Pahuta
Adjudicator