Benson v. Allstate Insurance Company of Canada
Licence Appeal Tribunal File Number: 22-005093/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:
Craig Benson
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: Brent McQuestion, Counsel
For the Respondent: Ryan Kirshenblatt, Counsel
HEARD: In Writing
OVERVIEW
1Craig Benson, the applicant, was involved in an automobile accident on June 4, 2016, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Whether s. 5(1) of the Schedule requires the respondent to pay an income replacement benefit (“IRB”) directly to the applicant, absent agreement to the contrary?
ii. Is the applicant entitled to $2,189.08 ($4,389.08 less $2,200.00 approved) for a neuropsychological assessment, proposed by Dr. Cherisse McKay in a treatment plan submitted July 6, 2022, and partially approved August 29, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the respondent unreasonably delayed payment of the IRB to the applicant, such that the applicant is entitled to an award amounting to 20% of the value of the IRB payments that were sent to the applicant’s representative from January 10, 2023 until the release of this decision, including interest.
4I find the applicant is not entitled to payment of the outstanding amount in dispute for the neuropsychological assessment treatment plan.
ANALYSIS
Award for Unreasonable Delay of IRB Payments
5I find the respondent unreasonably delayed payment of the IRB to the applicant, such that the applicant is entitled to an award amounting to 20% of the value of the IRB payments that were sent to the applicant’s representative from January 10, 2023 until the release of this decision, including interest.
6By way of context, the issue over the payment of the applicant’s IRB cheques arose when the respondent decided on January 10, 2023 to start sending IRB payments to the applicant’s representative, as opposed to the applicant himself. When questioned, the respondent claimed it had concerns about the applicant’s “capacity” (letter dated February 10, 2023). According to the applicant, by the time his written submissions were completed in late October 2023, the respondent would have issued 21 IRB cheques to his representative, totaling $2,947.56.
7The applicant takes the position that s. 5(1) of the Schedule requires an insurer to make IRB payments directly to an insured person. Further, the applicant submits that legislation and case law establish the Tribunal’s jurisdiction to decide questions over “how” parties meet their obligations under the Schedule. For instance, the Court of Appeal for Ontario’s ruling in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615 (“Stegenga”) states the Tribunal’s jurisdiction over accident benefits disputes is “co-extensive with that removed from the court”: see paragraph 46.
8The respondent contends that Stegenga provides that the Tribunal only has jurisdiction over whether accident benefits should be paid, and, if so, whether the payments were late. Since it agrees to pay an IRB, and there is no dispute over the quantum or timing of these payments, the respondent argues that “where” payments are sent is not a dispute the Tribunal can adjudicate. In a similar vein, the respondent highlights how the parties’ dispute over where these payments were sent did not arise until after this application was filed. The respondent further contends that the applicant is effectively seeking injunctive relief, and it argues the Tribunal does not have the authority to grant such an order.
9Section 280 of the Insurance Act, R.S.O. 1990, c. I.8 provides the Tribunal with its jurisdiction over accident benefits disputes. Specifically, s. 280(1) states: “This section applies with respect to the resolution of disputes in respect of 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.” I find this grant of jurisdiction does encompass the parties’ dispute over the process the respondent uses to pay the applicant his IRB.
10In summarizing the Court of Appeal’s findings about the scope of s. 280, Justice Zarnett wrote at paragraph 53 [emphasis added]:
Disagreements between an insurer and insured about the SABs the insured should receive, their amount, the timeliness of their provision, and the conduct and process of the insurer in providing them (that is, the handling or administration of the claim) constitute disputes in respect of the insured person's entitlement to SABs or their amount. Put in terms applicable here, an insured person could properly be said to have a dispute falling within s. 280(1) if a benefit the insured considers ought to have been paid or provided was not, or if it was paid or provided but only well after the insured considers it should have been because of what the insured considers to have been the insurer's inappropriate handling of the claim. These are matters the legislature has empowered the LAT to decide, and has taken away from the court.
11When seen in light of this broad description of what constitutes “the resolution of disputes”, I find the respondent’s interpretation of the Tribunal’s jurisdiction is too narrowly construed. Not only is the Tribunal empowered to address disputes about what, how much, and when to pay accident benefits, but s. 280 also addresses questions over how claims are handled and administered. With this mandate in mind, I see no reason why the Tribunal may not consider questions about how a benefit is paid, including where (to whom) a payment is sent.
12I will note that the respondent also argues that this dispute over IRB cheques did not arise until after the applicant filed his application with the Tribunal. I do not see how this timeline impacts my findings, and, regardless, the Tribunal ordered the inclusion of this issue in this hearing through the reconsideration decision released on May 26, 2023.
13I then find that I do not have to address the parties’ arguments over whether s. 5(1) states IRB payments must be made to the insured person, or the argument that the applicant is asking for injunctive relief. Rather, I find the parties’ dispute can be effectively resolved via the applicant’s award request.
14Under s. 10 of O. Reg. 664, 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. Citing the FSCO decision in Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993), the standard for ordering an award was stated in 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT), at paragraph 28 [emphasis added]:
A number of tribunal decisions were provided to demonstrate when a “special award” will be ordered, including the leading Financial Service Commission of Ontario (FSCO) case of Plowright and Wellington, which held that the definition of unreasonable was as follows: "Unreasonable behaviour by an insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
15The applicant supports his request for an award by claiming that the respondent’s “refusal” to send the IRB payments to him directly is a “meritless attack upon the Applicant’s autonomy, which, given his catastrophic impairment and resulting vulnerabilities – ought to result in a special award.” The respondent disagreed, arguing that there was no unreasonable behaviour on its part. Specifically, citing records from the applicant’s PSW and the neuropsychological report discussed below, it argues that its “concerns about [the applicant’s] capacity and ability to manage money are not unfounded.” It also submits that there is no evidence presented by the applicant that these IRB cheques were not being forwarded from the representative to the applicant.
16I find the respondent unreasonably delayed payment of the IRB, as its decision to send cheques to the applicant’s representative, as opposed to the applicant himself, amounted to behaviour that is “imprudent” and “inflexible”.
17There is a legal presumption of capacity. As noted in a motion order from an earlier application involving this same applicant: “… the courts have the ability to assess a party’s capacity” (dated January 27, 2021, at para. 20). In the records before me, there is no evidence that such an assessment has been done. Yet, despite this presumption of capacity and the lack of a court assessment to the contrary, the respondent unilaterally decided to send the applicant’s IRB cheques to someone other than the applicant.
18I accept the applicant’s argument that this decision constituted unreasonable behaviour. In line with the holding from Plowright, I conclude the respondent’s decision to send the IRB cheques to someone other than the applicant (when there was no finding on incapacity by the courts) amounted to imprudent behaviour. Then, as it refused to amend this position once the issue was brought to its attention in early 2023, I further find the behaviour is inflexible. Finally, though not a standard under Plowright, I do accept the position that this behaviour amounted to a denigration of the applicant’s autonomy, as the respondent acted as though the applicant did not have the ability to determine where the payments he was entitled to should be sent.
19I can then infer that sending IRB payments to someone other than the insured person will result in some form of delay. However, following on the respondent’s argument about there being no evidence of the delay caused by sending the cheques to the representative, I cannot accurately determine the extent of this delay.
20Taken together, I will limit my award to 20% of the payments that were sent to the applicant’s representative from January 10, 2023 until the release of this decision. I find this amount is a sufficient balance between the imprudent and inflexible behaviour at issue, and the unclear nature of the delay. The applicant is also entitled to interest on this award, in accordance with s. 10 of O. Reg. 664.
Partially Approved Neuropsychological Assessment
21I find the remaining amount of the disputed neuropsychological assessment treatment plan is not payable.
22Entitlement to medical and rehabilitation benefits is determined by ss. 15 and 16 of the Schedule. An insured person has the onus of demonstrating—on a balance of probabilities—that the proposed treatment goals, services/items, and expenses listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident. Section 25(5)(a) then states that insurers shall not pay “more than a total of $2,000… in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it”.
23In the disputed OCF-18, the applicant is requesting $4,389.08 for the completion of a psychological interview, administration of neurocognitive tests, and the preparation of “a comprehensive Neuropsychological report”. The respondent partially approved this treatment plan in the amount of $2,200.00. Relying on the limit from s. 25(5)(a), the respondent stated in its Explanation of Benefits that “this request exceeds the maximum amount payable for one Neuropsychological Assessment.” The respondent also agreed to pay the $200.00 OCF-18 fee.
24The applicant supports payment of the remaining amount by citing case law where FSCO and the Tribunal were asked to consider whether a neuropsychological assessment could constitute more than one assessment: e.g., Kolapully and Toronto Transit Commission Ltd., Re, 2018 Carswell Ont 4989 (“Kolapully”) and C.C. v. Aviva Insurance Canada, 2020 CanLII 57410 (ON LAT). In turn, the applicant highlights a letter from the neuropsychologist who completed the OCF-18, Dr. Cherisse McKay (dated February 10, 2023). Dr. McKay wrote that, “due to the interconnected nature of its components”, she could not remove or reduce any part of the assessment “without sacrificing the quality”.
25The respondent disputed the applicant’s position, citing case law stating that assessments done by the same assessor are understood to be a single assessment. The respondent also notes that Dr. McKay referred to the assessment as a single assessment in her letter, and, in the end, she produced a single report (dated February 21, 2023). The respondent further submits that Dr. McKay’s complaints about the $2,000.00 limit are not relevant, as the Tribunal has discouraged attempts to split neuropsychological assessments: e.g., L.L. v. Certas Direct Insurance Company, 2022 CanLII 136078 (ON LAT) (“L.L.”). Finally, the respondent notes that Kolapully involved three OCF-18s, while there is only one OCF-18 in this case.
26I find the remaining amount of the disputed treatment plan is not payable, as I am satisfied that this neuropsychological assessment constitutes a single assessment, such that it is subject to the $2,000.00 limit under s. 25(5)(a).
27The wording found in the OCF-18 and Dr. McKay’s letter, as well as the resulting report itself, all provide sufficient evidence that this neuropsychological assessment was both conceived of and conducted as a single assessment. For instance, in her February 2023 letter, Dr. McKay referred to it several times as “a Neuropsychological Assessment”. The OCF-18 also described the final report as “Documentation of cognitive and psychological functioning by way of completion of a comprehensive Neuropsychological report.”
28Most notably, I place significant weight on the fact that the different forms of psychological interviewing and neurocognitive testing requested in the OCF-18 all resulted in one report. Taken together, this evidence lends credence to the position that the neuropsychological assessment is properly understood as a single assessment for the purpose of s. 25(5)(a) of the Schedule.
29I would also note that, while Dr. McKay suggested she could submit separate requests for psychological and neurocognitive assessments on different OCF-18 forms, I find this practice would be akin to the subdividing that was discouraged in L.L. at paragraph 104: “… I agree with the respondent’s position that neuropsychological assessments are not permitted to be subdivided to avoid the $2,000.00 limit imposed by the Schedule.” This practice of subdividing assessments to circumvent the $2,000.00 would place undue import on form over substance, all the while running counter to the language of the Schedule.
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there is no outstanding payment owing for this treatment plan, no interest is owing for this benefit.
ORDER
31The Tribunal makes the following orders:
i. I find the applicant is entitled to an award amounting to 20% of the value of the IRB payments that were sent to the applicant’s representative from January 10, 2023 until the release of this decision, including interest in accordance with s. 10 of O. Reg. 664.
ii. I find the applicant has not demonstrated entitlement to the remaining outstanding amount of the disputed neuropsychological assessment treatment plan.
iii. I find no interest is owing for the remaining outstanding amount of the disputed neuropsychological assessment treatment plan.
Released: July 10, 2024
Craig Mazerolle
Vice-Chair```