Licence Appeal Tribunal File Number: 22-011493/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:
Evdokia Thomas
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Sherilyn Pickering, Counsel
For the Respondent:
Geoffrey Keating, Counsel
HEARD: By way of written submissions
OVERVIEW
1Evdokia Thomas (“the Applicant”) was involved in an automobile accident on August 20, 2020, and sought benefits from Security National Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Respondent denied funding for an occupational therapy treatment plan and the Applicant 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 a medical benefit in the amount of $2,384.18 for an occupational therapy treatment plan, dated August 16, 2021?
ii. Is the Applicant entitled to interest on the overdue payment of benefits?
iii. Is the Applicant entitled to an award pursuant to section 10 of Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?
RESULT
3I find that the Applicant is entitled to the treatment and assessment plan in dispute, plus interest pursuant to section 51 of the Schedule.
4No Award is payable.
BACKGROUND
5The Applicant was struck by a vehicle while crossing the street as a pedestrian. As a result of the accident, she sustained soft-tissue injuries and developed psychological injuries thereafter.
6At issue is the Applicant’s entitlement to an occupational therapy treatment plan. She submits that it is reasonable and necessary as a result of the accident, and that she is entitled to it on statutory grounds because the Respondent failed to provide a compliant denial. The Respondent contends that the plan is not reasonable and necessary because they Applicant has not demonstrated that she benefits from occupational therapy. The Respondent never addressed the Applicant’s submissions regarding statutory entitlement.
7For the following reasons, I find that the Applicant is entitled to the occupational therapy treatment plan because the Respondent’s denial does not comply with section 38(8) of the Schedule.
ANALYSIS
8The onus is on the Applicant to demonstrate entitlement to the benefits claimed. Her onus remains regardless of whether her claim to entitlement is based on statutory grounds, or because the occupational therapy treatment plan is reasonable and necessary as a result of the accident.
No medical reasons in the denial
9I find that the Respondent’s denial of benefits fails to comply with section 38(8) of the Schedule because it included no medical reasons.
10Section 38(8) of the Schedule provides that the Respondent must give the medical and any other reasons for denying a treatment and assessment plan. A failure to comply with section 38(8) engages section 38(11), which entitles the Applicant to the goods and services described in the plan, if incurred during the period of non-compliance.
11The Respondent’s letter dated August 26, 2021, included no medical and other reasons for the denial. The letter states that it refuses to pay for any of the goods and services in the plan, then lists the Applicant’s injuries, and advises that an insurer’s examination (“IE”) will be arranged. Listing injuries documented in a person’s medical record is not a reason for denial, and certainly not a medical reason. Instead, it is incumbent upon the Respondent to advise the Applicant the medical and any other reasons why the occupational therapy treatment plan is not reasonable and necessary as it relates to the injuries listed. Accordingly, I find that this denial does not comply with section 38(8) of the Schedule.
No medical reasons in the denial following the IE
12I find that the Respondent’s denial of benefits following the IE failed to comply with section 38(8) of the Schedule because it included insufficient medical reasons for the denial.
13The Respondent’s letter dated December 9, 2021, included no medical and other reasons for the denial. Paraphrasing, the letter states that the Applicant is not entitled to any of the goods and services in the plan because the occupational therapist, taking into consideration the report of Dr. E. Urovitz, orthopaedic surgeon, dated April 29, 2021, found the plan to be not reasonable and necessary. It then encourages the Applicant to read the enclosed report with her treating health practitioner.
14This denial is insufficient because it does not provide the Applicant with enough information to make an informed decision whether to dispute the denial. The denial includes no basis for the finding that the plan is not reasonable and necessary. The denial includes no discussion about the Applicant’s injuries, her recovery to the date of the plan, or the goods and services sought.
15There are no other denials before me that relate to this plan. Accordingly, I find that the Respondent has not cured the deficiency in the notices and has not complied with section 38(8) of the Schedule.
Section 38(11) is engaged
16The Respondent’s failure to provide a compliant denial engages section 38(11) of the Schedule. That section provides that the Applicant is entitled to the goods and services incurred during the period of non-compliance, so long as they are identified in the plan.
17The Applicant has demonstrated that she incurred the goods and services listed in the plan. The invoice from the service provider is sufficient evidence documenting that the goods and services were incurred. Accordingly, I find that the Applicant is entitled to payment for the goods and services incurred.
Interest
18Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that the Applicant is entitled to and incurred the treatment and assessment plan in dispute, it follows that she is entitled to interest pursuant to section 51 of the Schedule.
Award
19The Applicant sought an award under section 10 of Regulation 664. Under section 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.
20The Applicant submits that she is entitled to an award because the Respondent provided no valid reason to deny the plan and follows the conclusions of its assessors without adjusting the claim and taking into account the totality of the medical records. The Respondent submits that the Applicant is not entitled to an award simply because an insurer made the wrong decision, and further submits that the Applicant has not established that it acted unreasonably withheld or delayed.
21I find no award is payable because there is no evidence demonstrating that the Respondent acted in a manner which warrants an award. It is trite law that insurers are not held to a standard of perfection and that errors in adjusting a claim do not automatically amount to an award. Rather, there has to be conduct that can be described such as excessive, imprudent, stubborn, or unyielding. Here, there is no such behaviour. The Respondent’s behaviour cannot be described by any of the adjectives I listed above. Accordingly, I find no award payable.
CONCLUSION AND ORDER
22The Respondent did not comply with section 38(8) of the Schedule when it denied funding for the occupational therapy treatment plan. It has yet to cure the deficiency, thus section 38(11) is engaged, entitling the Applicant to the goods and services incurred during the period of noncompliance.
23The Applicant had demonstrated that the goods and services were incurred during the period of noncompliance. Thus, she is entitled to payment for the incurred goods and services, plus interest pursuant to section 51 of the Schedule.
24No award is payable.
Released: December 10, 2024
Brian Norris
Adjudicator