Licence Appeal Tribunal File Number: 23-014538/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:
Gary Tanefsky
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Rachel Radomski, Counsel
For the Respondent:
Ryan Kirshenblatt, Counsel
HEARD:
In Writing
OVERVIEW
1Gary Tanefsky, the Applicant, was involved in an automobile accident on November 9, 2022, 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, 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. Is the applicant entitled to $2,197.00 for psychological services, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“treatment plan”) submitted April 15, 2023, and denied May 1, 2023?
ii. Is the applicant entitled to $3,000.00 for a gym membership proposed by Whitby Wellness Centre in a treatment plan submitted May 16, 2023, and denied June 13, 2023?
iii. Is the applicant entitled to $5,045.00 for physiotherapy services proposed by The Rehab Centre in a treatment plan submitted July 1, 2023, and denied July 3, 2023.
iv. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3In email correspondence dated December 23, 2024, the Applicant withdrew the 3 treatment plans in dispute as indicated in the case conference report and order (“CCRO”) dated May 14, 2024, leaving only the s.10 award and interest in dispute.
RESULT
4I find that the Applicant is not entitled to an award.
5I find that the Applicant is not entitled to interest.
PROCEDURAL ISSUE
6The Respondent submits that the Applicant submitted multiple sets of submissions beyond the ordered page limits and as such, this action should be taken into consideration in the adjudication of this case. It asks that the Applicant’s submissions dated January 8, 2025, and all associated attachments be struck.
7In their reply submissions, the Applicant submits that their submissions were filed in compliance with the CCRO. Further, they submit that striking the submissions or disregarding the attachments would prejudice the Applicant’s ability to present a full and complete case and would limit the Tribunal’s ability to make an informed decision.
8The CCRO ordered 8 pages for the parties’ submissions, evidence and authorities and 4 pages for the applicant’s reply submissions. The Applicant’s submissions were 11 pages and their reply submissions were 3 pages.
9I find that striking or disregarding the Applicant’s submissions would be more prejudicial to the Applicant than allowing them would be prejudicial to the Respondent. I acknowledge that the Applicant submitted their documents beyond the ordered 8 pages and take this into consideration. However, I do not find that the additional 3 pages of the Applicant’s submissions prejudices the Respondent as much as striking the written submissions of the Applicant would be to them. Therefore, I deny the Respondent’s request.
ANALYSIS
Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments (for treatment) to the Applicant?
10I find that an award is not payable.
11Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the Applicant to prove, on a balance of probabilities, that the Respondent’s conduct meets this criterion.
12I will first address whether a s. 10 award may be adjudicated as a stand-alone issue. In Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198, the Divisional Court considered this question. The Court found, at para 44, that “the fact that those benefits may have been paid by the insurer does not detract from the fact that at the time of the award the insured had a right to receive those benefits.” In this case, the treatment plans were paid by the Respondent and resolved as issues prior to the hearing. I interpret this to mean that a s. 10 award may be adjudicated as a stand-alone issue.
13Turning now to the submissions of the parties, the Applicant submits that the Respondent was in receipt of the OCF-1, OCF-3 on January 17, 2023, and November 26, 2022, and that despite this, the Respondent failed to acknowledge receipt of the OCF-3 form until February 16, 2023.
14The basis of the Applicant’s submissions is that the Respondent delayed or withheld treatment due to their failure to acknowledge receipt of the OCF-3 form, as well as other correspondence. More specifically the Applicant submits that a 50% award is owing on non-earner benefits (“NEB”) in the amount of $19,793.14, the approved treatment plans in the amount of $9,935.65, and denied treatment plans in the amount of $10,242.00.
15They further submit that the Respondent’s internal log notes recognize a level of disability prior to February 24, 2024, which would warrant approval of the treatments, or s. 44 assessments to determine whether they were reasonable and necessary. They submit that the Respondent unreasonably denied these treatment plans due to “good or service not covered within the MIG” from the date of submission until approval on May 14, 2024.
16The Applicant submits that it was only at the case conference on May 14, 2024, that the Respondent agreed to remove the Applicant from the MIG, approve the OCF-18 treatment plans and pay 100 weeks of NEB, plus interest, totalling $19,793.14.
17The Respondent submits that on November 28, 2022, it received an OCF-3 dated November 24, 2022. The OCF-1 was not received until January 17, 2023. The Applicant did not elect NEB benefits until the OCF-10 was received on April 19, 2023. On February 16, 2023, the Respondent sent an EOB and s. 33 request for the following documents: Completion of the Activities of Daily Living Checklist; Hospital records and ambulance call report dated November 11, 2022; Decoded OHIP Summary from November 11, 2021, to present (February 16, 2023); clinical notes and records from any family doctors or attending physicians.
18The Respondent required that the documents requested under s.33 be sent by March 3, 2023, and that the majority of these productions were not provided until February 6, 2024. The Respondent submits that to this date of preparation of written submissions, the Applicant has still not provided a copy of the Activities of Daily Living Checklist.
19The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions. I find that the Applicant has not established that the Respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.
20Therefore, on a balance of probabilities I find that an award is not payable.
Interest
21Pursuant to s. 51 of the Schedule, I find no interest applies.
ORDER
i. I find that the Applicant is not entitled to an award.
ii. I find that the Applicant is not entitled to interest.
Released: November 13, 2025
Sarah Guergis
Adjudicator