Correia v. TD General Insurance Company, 2024 CanLII 135

Correia v. TD General Insurance Company

Citation: Correia v. TD General Insurance Company, 2024 ONLAT 21-009116/AABS Licence Appeal Tribunal File Number: 21-009116/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:

Daniel Correia Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Joseph Lam, Counsel For the Respondent: Amit Kwatra, Counsel

HEARD: By Written Submissions

OVERVIEW

1Daniel Correia (the "applicant") was involved in an automobile accident on January 12, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule").

2The applicant submitted a treatment plan/OCF-18 ("treatment plan") on June 1, 2021 for a psychological assessment in the amount of $2,018.86.

3TD General Insurance Company (the "respondent") denied the treatment plan on June 15, 2021 on the basis that approval of the treatment plan would exceed $50,000.00, which is the maximum amount payable for medical and rehabilitation benefits in respect to an insured person who sustained a predominantly non-catastrophic impairment as defined by the Schedule. At the time, the respondent had already approved $49,562.99 for treatment plans and paid $38,812.92 for incurred treatment.

4The applicant disagreed with the respondent's decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

5Subsequently, the respondent reviewed the applicant's treatment plans and contacted his treatment providers in order to determine what amount had been utilized, paid, and was outstanding. On October 22, 2021, the respondent completed its review and concluded that it had approved $50,004.37 (which includes HST) for treatment plans and paid $38,552.96 for incurred treatment. As a result, there was a remaining balance of $11,387.02 for previously approved treatment. On October 28, 2021, the applicant confirmed that he no longer wished to utilize the remaining amounts from previously approved treatment plans. As a result, these funds could now be reallocated for treatment, and the respondent immediately approved the denied treatment plan.

6During the case conference held on October 20, 2022, the applicant withdrew his claim for the above-described treatment plan. Notwithstanding the respondent's approval of the treatment plan, the applicant still wished to proceed on the issue of an award under s. 10 of Regulation 664.

ISSUES

7The sole issue in dispute is whether the respondent is liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

8For the reasons that follow, I find that the respondent is not liable to pay an award.

ANALYSIS

Award

9I find that the applicant has failed to demonstrate, on a balance of probabilities, that the respondent is liable to pay an award under s. 10 of Regulation 664.

10Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

11The onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments.

12The applicant submits that the treatment plan was erroneously denied based on the respondent's mistaken calculation of the remaining funds available under the policy for medical and rehabilitation benefits as it failed to properly account for payment made by the applicant's extended health coverage ("EHC") insurer. The applicant indicates that the respondent knew or ought to have known about EHC deductions that applied, leaving ample funding within the policy limit as early as July 28, 2021.

13The applicant further submits that he was forced to gather his own account summaries and contact his service providers to confirm that there was ample funding available within the policy limit to pay for the treatment plan. Despite this, the applicant was required to take additional and unnecessary steps to "free up" additional funding for medical and rehabilitation benefits.

14In response, the respondent submits that it did not conduct itself in a way that warrants an award and states that it acted reasonably, honestly, and in good faith in adjusting the claim.

15The respondent further submits that it is not liable to pay for treatment in excess of the $50,000.00 statutory cap on funding for medical and rehabilitation benefits pursuant to s. 18(3) of the Schedule. The respondent argues that once it approves treatment up to the policy limits, it is unable to approve any further treatment plans regardless of the amount that has actually been incurred. Although the applicant has access to collateral benefits, payments made by his EHC insurer pursuant to s. 47(2) of the Schedule does not reduce the respondent's obligation to pay for approved treatment plans or its statutory limits.

16The respondent also submits that it went above and beyond to contact the applicant's various treatment providers in order to determine what portions of the approved treatment plans were unused and whether there were any outstanding invoices. Once the applicant confirmed that he no longer wished to utilize the unused portions of the previously approved treatment plans, these funds became available and could be reallocated, allowing the respondent to approve the denied treatment plan.

17For the reasons that follow, I find that the applicant has not met his evidentiary burden to establish that he is entitled to an award under s. 10 of Regulation 664.

18It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, the insurer's conduct must be excessive, imprudent, stubborn, unyielding, or immoderate in withholding or delaying payments. Here, there is no evidence that the respondent's actions rose to the level of being excessive, imprudent, stubborn, unyielding, or immoderate.

19I do not agree with the applicant's submissions that he is not responsible for gathering his own accounts to determine how much funds he has incurred under the policy. The applicant has not directed me to any authority indicating that this burden lies with the respondent. Further, as noted by the respondent, a similar argument was made in P.K. v. Coseco Insurance Company, 2020 CanLII 94817 (ON LAT) and the Tribunal found that this argument was unpersuasive. Further, it held at paragraph 20 that the applicant was in a better position than the respondent to know how much of the policy limit for medical and rehabilitation benefits had been expended as the applicant was the one consuming the services. Although I am not bound by prior decisions of the Tribunal, I subscribe to the same opinion in this instance.

20I do not agree with the applicant's assertion that there were sufficient funds remaining under the policy to pay for the treatment plan prior to October 28, 2021. Although the parties' calculation of the amount of approved treatment plans varies, none of the calculations leave enough funds under the policy to cover the treatment plan in the amount of $2,018.86. Indeed, the respondent's July 14, 2021 calculation indicated that it approved $49,562.99 in treatment plans, leaving a balance of $437.01, and the applicant's September 2, 2021 calculation indicated that the respondent approved $47,989.89 in treatment plans, leaving a balance of $2,010.11. Also, the respondent's October 22, 2021 calculation indicated that it approved over $50,000.00 in treatment plans, inclusive of HST.

21I do not agree with the applicant's argument that it was unnecessary for him to confirm that he no longer wished to utilize the remaining amounts from previously approved treatment plans before the respondent could approve the denied treatment plan. The applicant has not directed me to any authority to support that the respondent is required to approve treatment plans in excess of the policy limits. Further, pursuant to s. 18(3) of the Schedule, the respondent is not required to pay for medical and rehabilitation benefits in excess of the policy limits.

22I am not persuaded by the applicant's allegation that the respondent knew or ought to have known as early as July 28, 2021 that his EHC insurer had covered $4,418.00 in treatment, leaving additional funds under the policy to pay the treatment plan as it is not supported by the evidence. While the applicant claims that an adjuster log note from Margaret Orlandi dated July 28, 2021 acknowledges the amount of the EHC deductions, upon review of the adjuster log notes, I find that no such note exists. Rather, the portion of the adjuster log note cited by the applicant is actually a note dated October 22, 2021 from Alen Kokalovski, the assigned claims adjuster's manager. In any event, as noted by the respondent, payments made by the EHC insurer under s. 47(2) of the Schedule does not reduce the respondent's obligation to pay for approved treatment plans or its statutory limits.

23Accordingly, I find that the applicant has not met his evidentiary burden to establish that he is entitled to an award under s. 10 of Regulation 664.

ORDER

24For the reasons outline above, I find that the respondent is not liable to pay an award.

25The application is dismissed.