Licence Appeal Tribunal File Number: 23-004878/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:
Lorraine Leslie
Applicant
and
Western Assurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Piera Segreto, Counsel
For the Respondent:
Robbie Brar, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Lorraine Leslie, the applicant, was involved in an automobile accident on October 16, 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, Western Assurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 23, 2020, to date and ongoing?
Is the applicant entitled to $750.00 ($2,950.00 less $2,200.00 approved) for a chronic pain assessment proposed by New Age Specialized Assessments in a treatment plan/OCF-18 (“treatment plan”) dated May 8, 2023?
Is the applicant entitled to $1,639.71 ($2,745.32 less $1,105.61 approved) for psychological services proposed by New Age Specialized Assessments in a treatment plan dated May 8, 2023?
Is the applicant entitled to $2,547.88 ($5,396.10 less $2,848.22 approved) for psychological services proposed by New Age Specialized Assessments in a treatment plan dated June 12, 2023?
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?
RESULT
3For the reasons that follow, I find that:
The applicant is entitled to an IRB in the amount of $400.00 per week from March 1, 2023, to November 2, 2023, less any employment income earned during this period pursuant to s. 7(3) of the Schedule.
The applicant is entitled to $141.81 for psychological services (Issue 3), and to $87.78 for psychological services (Issue 4). She is not entitled to the balance of the treatment plans in dispute.
The applicant is entitled to interest with respect to the IRB and the psychological services.
The respondent is liable to pay an award of 35%, plus interest, for the IRB.
4The application is granted in part.
ANALYSIS
Background
5Following the accident, the applicant submitted an Application for Accident Benefits (OCF-1) dated November 4, 2020, to Economical Insurance. A priority dispute ensued, and on November 10, 2021, the respondent assumed carriage of the applicant’s accident benefits claim.
Income Replacement Benefit
6I find that the applicant has demonstrated, on a balance of probabilities, that she is entitled to an IRB in the amount of $400.00 per week from March 1, 2023, to November 2, 2023. She is not entitled to an IRB for the balance of the period in dispute.
7Two sections of the Schedule define the process required to determine entitlement to an IRB. To receive payment for a pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of her employment, which tasks she is unable to perform, and to what extent she is unable to perform them.
8To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
9Section 7(1) of the Schedule establishes that weekly IRB payments are calculated by using 70 per cent of the applicant’s base amount less the total of all other income replacement assistance for the particular week the benefit is payable. Section 4(1) sets out that the base amount is the applicant’s gross annual employment income divided by 52. In accordance with s. 7(3) of the Schedule, the respondent may also deduct 70 per cent of any gross employment income from the weekly IRB payable to the applicant received during the period in which she is eligible to receive an IRB.
10The applicant bears the burden of proving, on a balance of probabilities, that she meets these tests and criteria.
11Section 36 of the Schedule details the process for claiming an IRB. Sections 36(2) and 36(3) provide that the entitlement period for an IRB commences once a completed OCF-1 and a completed Disability Certificate (OCF-3) has been submitted. An applicant who does not submit a completed OCF-3 is not entitled to an IRB for any period before the completed OCF-3 is submitted.
12Section 36(4) of the Schedule states that within 10 business days after the insurer receives the OCF-1 and completed OCF-3, 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 subsection 33(1) or (2).
13Section 36(6) of the Schedule further provides that if the insurer fails to comply with s. 36(4) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the OCF-1 and completed OCF-3 and ending, if the insurer subsequently gives a notice described in s. 36(4)(b) of the Schedule, on the day the insurer gives the notice.
14Section 32(2) of the Schedule provides that upon receiving notice of an insured person’s intention to apply for one or more benefits, the insurer shall promptly provide the person with the appropriate application forms, a written explanation of the benefits available, information to assist the person in applying for benefits, and information on the election relating to income replacement, non-earner, and caregiver benefits, if applicable.
15Further, s. 34 of the Schedule provides that a person’s failure to comply with the time limit does not disentitle the person to a benefit if the person has a reasonable explanation. The onus is on the applicant to establish a reasonable explanation for the delay.
16The applicant submits that she suffers from a substantial inability to perform the essential tasks of her pre-accident employment and that she suffers from a complete inability to engage in any employment for which she is reasonably suited. The applicant states that the respondent was aware that she was not working following the accident, and she claims that the respondent disregarded information in her file, like her statement dated March 17, 2021, indicating that she was off work due to her injuries and that she unsuccessfully attempted a return to work from January 25, 2021, to February 20, 2021.
17While the applicant acknowledges that her OCF-3 dated February 24, 2023, was not submitted to the respondent until March 1, 2023, she argues that it is unreasonable for the respondent to deny her entitlement to an IRB based on the late submission of her OCF-3 because she was self-represented when she first applied for accident benefits, and she was experiencing difficulties due to her injuries. She relies on E.Z. v. Co-operators General Insurance Company, 2020 CanLII 87935 (ON LAT).
18The applicant also argues that the respondent accepted her late submitted OCF-3 on April 21, 2023, when it acknowledged receipt of her OCF-3 and requested that she produce various documents pursuant to s. 33 of the Schedule to determine the quantum of the IRB. The applicant states that the respondent is estopped from insisting on strict compliance with the Schedule.
19The applicant submits that when the respondent accepted priority of her claim on November 10, 2021, it was obligated to review her file and to ensure that her file had been handled properly. The applicant argues that the respondent was required to ensure that an application package, including an OCF-3 form, had been provided in accordance with s. 32(2) of the Schedule.
20The applicant also submits that the respondent did not request or take reasonable steps to obtain a completed OCF-3, and that it should be estopped from relying on its own omission years later. The applicant states that there is a positive onus on the insurer to act in good faith and not to frustrate the applicant’s entitlement to benefits. The applicant indicates that the respondent failed to provide a copy of the adjuster’s log notes for the period of October 16, 2020, to April 23, 2023, as required by the Case Conference Report and Order (“CCRO”) released on December 15, 2023. As such, she claims that it is unclear whether an OCF-3 was previously submitted to the respondent. Further, although the applicant’s counsel inquired on September 20, 2022, whether there was an OCF-3 on file and whether the applicant was in receipt of an IRB, the respondent did not respond to this inquiry. The applicant now suggests that an OCF-3 may have been submitted to Economical Insurance.
21The applicant submits that she has a reasonable explanation under s. 34 of the Schedule for the late submission of her OCF-3. She claims that she was unable to comply sooner due to the severity of her accident-related injuries.
22Finally, the applicant submits that an IRB does not have a total of 104 weeks of eligibility like a non-earner benefit. She states that even if an IRB is not payable for the period before the applicant submitted an OCF-3, the benefit remains payable for the period following the submission of the OCF-3. The applicant relies on K.A. v. Intact Insurance Company, 2020 CanLII 94779 (ON LAT) (“K.A.”).
23In response, the respondent submits that the applicant is not eligible to an IRB because she did not establish entitlement to an IRB within the first 104-weeks following the accident, i.e. by October 13, 2022. The respondent states that it has no obligation to pay an IRB until both the OCF-1 and OCF-3 has been submitted and given that the applicant did not submit an OCF-3 until March 1, 2023, she is not eligible to receive an IRB.
24The respondent also states that Economical Insurance, the first insurer, would have been the insurer that sent the initial application package, including copies of the OCF-1 and OCF-3 forms. The respondent is unable to confirm whether the initial application package was provided to the applicant by Economical Insurance as it claims that it does not have a copy of the complete adjusting file from Economical Insurance, but it assumes that it was sent. Further, while the respondent acknowledges that it requested the production of various documents pursuant to s. 33 of the Schedule upon receiving the applicant’s OCF-3, it claims that it did so in good faith as it assumed that the applicant was already compliant with her claim for an IRB. The respondent relies on Giannoylis v. Travelers Insurance, 2021 CanLII 88031 (ON LAT) and Kunaseelan v. Aviva Insurance Company of Canada, 2022 CanLII 11134 (ON LAT).
25I find that the evidence supports a finding that the applicant did not submit an OCF-3 until nearly 124 weeks after the accident. Pursuant to s. 36(2) and 36(3) of the Schedule, the applicant is not entitled to an IRB for any period before her completed OCF-3 was submitted. Further, to apply for an IRB, the applicant must satisfy that she meets the eligibility requirements under s. 5 of the Schedule, and she must apply for an IRB within the 104-week period of eligibility under s. 6(1) of the Schedule. As the applicant did not apply for an IRB within the period of eligibility, i.e. by October 13, 2022, the respondent is not required to pay an IRB under s. 6(2)(b) of the Schedule.
26While the applicant relies on K.A., I do not find this decision to be helpful to her position. In K.A., the Tribunal indicated at paragraph 14 that “[w]hile I agree with the applicant that the Schedule is a consumer-protection legislation, I find the fact the applicant was self-represented for the first year and a half of his claim does not excuse his failure to submit the completed OCF-3 thereafter or until 121 weeks after his accident, which is fatal to his claim. Accordingly, he is statute-barred from proceeding with his NEB claim due to his failure to comply with s. 36(2) and (3) and ineligibility under s. 12(3)(c).”
27While the parties make various assumptions regarding what transpired prior to the applicant’s March 1, 2023 submission of an OCF-3, based on the evidentiary record, the evidence supports that the applicant did not submit an OCF-3 until March 1, 2023. According to an adjuster’s log note, the respondent spoke with the applicant on December 2, 2021, and confirmed that no specified benefits were being paid. Then, in adjuster’s log notes dated January 28, 2022, April 19, 2022, July 15, 2022, and November 3, 2022, the respondent noted that there was no OCF-3 on file and no specified benefits being paid to the applicant.
28While the respondent assumes that Economical Insurance, the first insurer, provided the applicant with an application package, which ought to have included an OCF-3 form, it asserts that it cannot confirm this assumption on the basis that it does not have a complete copy of Economical Insurance’s claim file. As I cannot accept the respondent’s assumption as fact, I find that there is insufficient evidence to support that the appropriate forms were provided to the applicant. However, the Schedule provides no consequence for an insurer’s non-compliance with s. 32(2) of the Schedule, and the fact that the respondent did not provide the applicant with an OCF-3 form has no impact on the applicability of s. 36(3) of the Schedule.
29While the applicant’s counsel inquired on September 20, 2022, whether there was an OCF-3 on file and whether the applicant was in receipt of an IRB, I find that the applicant knew or ought to have known that no OCF-3 had been submitted and that she was not in receipt of an IRB. While the Schedule is a consumer-protection legislation, the fact that the applicant was self-represented when she first applied for accident benefits does not excuse the late submission of her OCF-3.
30I further find that s. 34 of the Schedule has no application when considering the applicant’s entitlement to an IRB prior to March 1, 2023, the date on which the OCF-3 was submitted. Section 34 is a remedial provision for a missed time limit, and s. 36(3) of the Schedule includes no time limit for it to be applied against.
31Nevertheless, I find that the applicant is entitled to receive an IRB for the period of March 1, 2023, to November 2, 2023. Once the respondent was in receipt of both the OCF-1 and OCF-3, pursuant to s. 36(6) of the Schedule, it was obligated to give the applicant notice per s. 36(4) or 36(5) within 10 business days. Since the OCF-1 was submitted on or about November 4, 2020, and the OCF-3 was submitted on March 1, 2023, the respondent was required to give notice by no later than March 15, 2023. However, the respondent did not acknowledge and respond to the OCF-3 until April 21, 2023, which is when it requested that the applicant provide various documents to calculate the quantum of the IRB pursuant to s. 36(4)(c) of the Schedule. Further, based on the evidentiary record, the respondent did not give notice under s. 36(4)(b) of the Schedule to the applicant explaining the medical and any other reasons why it did not believe she was entitled to an IRB until November 2, 2023. At that time, the respondent advised the applicant that she was not eligible to an IRB as her OCF-3 was not submitted within 104 weeks after the accident, and since she did not establish entitlement to IRB within 104 weeks after the accident, she was precluded from seeking IRB pursuant to ss. 5 and 6 of the Schedule.
32Finally, I find that the evidence supports a finding that the weekly amount of IRB payable is $400.00 per week. According to an Employer’s Confirmation Form dated April 4, 2023, completed by William Osler Health System, at the time of the accident, the applicant was employed as a clerical associate, and she earned a gross income of $44,735.78 in the 52 weeks prior to the accident. Also, in the 4 weeks leading to the accident, she earned as follows: $870.00 (week 1); $857.25 (week 2); $863.63 (week 3); and $863.63 (week 4). However, since the OCF-3 indicates that the applicant was working at the time at a different job at reduced capacity, 1 day per week, the respondent may deduct 70 per cent of the gross employment income earned during the period of March 1, 2023, to November 2, 2023, pursuant to s. 7(3) of the Schedule.
33Accordingly, the applicant has established that she is entitled to an IRB for the period of March 1, 2023, to November 2, 2023.
34I find that the applicant has demonstrated, on a balance of probabilities, that $141.81 of the unapproved balance for psychological services (Issue 3) and $87.78 of the unapproved balance for psychological services (Issue 4) are reasonable and necessary. She is not entitled to the balance of the disputed treatment plans.
35To receive payment for a treatment and assessment plan under ss. 15 and 16 of the Schedule, the applicant bears the onus of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable and necessary.
The applicant is not entitled to $750.00 for a chronic pain assessment (Issue 2)
36I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved balance in the amount of $750.00 for a chronic pain assessment.
37The treatment plan dated May 8, 2023, in the amount of $2,950.00 proposes a chronic pain assessment and completion of the treatment plan. The respondent partially approved the treatment plan in the amount of $2,200.00. It denied the balance of $750.00 on the basis that, pursuant to s. 25(5) of the Schedule, an insurer is not required to pay more than $2,000.00 plus any applicable HST for an assessment.
38The applicant submits that the unapproved balance of the chronic pain assessment is reasonable and necessary and that she is entitled to claim the unapproved balance pursuant to s. 25(1) of the Schedule. She also argues that given the complexity of her injuries and the substantial volume of medical documentation, the assessor requires additional time for preparing and conducting the assessment.
39The respondent submits that its partial approval of the treatment plan is consistent with s. 25(5)(a) of the Schedule. It also argues that an insurer is not responsible to pay for any additional time or resources a service provider requires to conduct a standard assessment.
40I find that the evidence does not support a finding that $2,750.00 for a chronic pain assessment is reasonable and necessary. Section 25(5)(a) of the Schedule clearly sets out that the maximum amount payable in respect to fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it is $2,000.00 plus any applicable HST. Further, I do not agree with the applicant’s submission that the provisions in s. 25(1) of the Schedule require an insurer to pay more than the maximum amount set out in s. 25(5)(a) of the Schedule for the chronic pain assessment.
41Accordingly, I find that the applicant has not proven that the unapproved balance for a chronic pain assessment is payable.
The applicant is entitled to $141.81 for psychological services (Issue 3)
42I find that the applicant has demonstrated, on a balance of probabilities, that she is entitled to $141.81 of the unapproved balance for psychological services. She is not entitled to the remaining balance in the amount of $1,497.90.
43The treatment plan dated May 8, 2023, in the amount of $2,745.32 proposes therapy with a psychotherapist, planning services, preparation of a final progress report, and completion of the treatment plan. The respondent partially approved the treatment plan in the amount of $1,105.61. It denied the balance of $1,639.71 for three reasons. First, it reduced the hourly rate of the psychotherapist from $149.61 to $58.19 on the basis that the hourly rate sought by the applicant exceeded the maximum hourly rate set out in the Professional Services Guidelines ("PSG”). Second, it denied the costs of planning services in the amount of $300.00 on the basis that these expenses are related to the hourly rate provided. Third, it reduced the costs associated with the completion of the treatment plan from $200.00 to $58.19, ultimately reducing the time allotted for the completion of the treatment plan to one hour.
44The applicant submits that the respondent’s hourly rate of $58.19 for a psychotherapist is unreasonable. Relying on J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT) (J.V.), the applicant argues that a psychotherapist ought to be entitled to the same rate as a psychologist or a psychological associate. The applicant states that since the psychotherapist is providing psychological counselling sessions, an hourly rate of $149.61 is reasonable and necessary.
45The applicant further submits that an hour for the completion of the treatment plan is insufficient given the complexity of her injuries and the volume of her medical records. She argues that it is reasonable that an assessor would require additional time, beyond the hour provided by the respondent, to complete the treatment plan.
46The respondent maintains its partial approval of the disputed treatment plan. Relying on J.A. v. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT), the respondent states that in that decision, the Tribunal found that psychotherapists are not entitled to the same hourly rate as psychologists and that services not covered by the PSG are subject to negotiation. The respondent also notes that there is no evidence of the experience and credentials of the psychotherapist to support a higher hourly rate.
47I find that the evidence supports a finding that the cost of $200.00 for the completion of a treatment plan is reasonable and necessary. Section 25(1)3 of the Schedule provides that an insurer shall pay for expenses incurred by or on behalf of an insured person for reasonable fees charged by a health practitioner for reviewing and approving a treatment plan under s. 38, including any assessment or examination necessary for that purpose. I am satisfied by the applicant’s submissions that more than an hour is reasonably required to complete the treatment plan.
48However, I find that the remaining balance of the psychological services in dispute is not reasonable and necessary.
49It is well established that the PSG sets out the maximum expenses payable for a range of health care services under the Schedule. Although the PSG does not provide an hourly rate for psychotherapists, it provides that the maximum hourly rate for unregulated providers such as rehabilitation counsellors is $58.19, and the respondent approved the hourly rate of $58.19. Given that the PSG is silent on the maximum hourly rate for psychotherapists, it is left to the parties to determine what the acceptable hourly rate would be, and if they are unable to do so, the Tribunal must decide.
50I find that the evidence does not support a finding that the psychotherapist should be paid the higher hourly rate of $149.61 in the circumstances. While the applicant relies on J.V., this decision is not binding. I also find that the decision is distinguishable to the case before me. In J.V., the Tribunal’s decision to award the hourly rate of $149.61 was based in part on the psychotherapist’s credentials, specialized cognitive behaviour therapy training, and experience. In contrast, in the present case, the applicant has not directed me to evidence to support that the psychotherapist in question’s qualifications warrant an hourly rate akin to a psychologist. As a result, I accept that $58.19 per hour is a reasonable hourly rate for a psychotherapist to provide therapy services.
51I further find that the applicant has not met her burden of proving that the costs of planning services in the amount of $300.00 is reasonable and necessary. The applicant did not address this unapproved balance in her written submissions.
52Accordingly, I find that the applicant has proven that $141.81 for the unapproved balance for psychological services is payable.
The applicant is entitled to $87.78 for psychological services (Issue 4)
53I find that the applicant has demonstrated, on a balance of probabilities, that she is entitled to $87.78 of the unapproved balance for psychological services. She is not entitled to the remaining balance in the amount of $2,460.10.
54The treatment plan dated June 12, 2023, in the amount of $5,396.10 proposes therapy with a social worker, planning services, preparation of a final progress report, in-vehicle driving rehabilitation therapy, driving instructor travel time, and completion of the treatment plan. The respondent partially approved the treatment plan in the amount of $2,848.22. It denied the balance of $2,547.88 on the basis that the hourly rates for the service providers, i.e. a social worker and a driving instructor, were in excess of the maximum hourly rate set out in the PSG. Further, the respondent reduced the time allotted for the completion of the treatment plan to one hour as no reasons were provided as to why additional time is needed to complete the treatment plan. It also denied the costs of planning services in the amount of $250.00; however, no reasons were included in the denial letter dated June 29, 2023.
55The applicant submits that the respondent’s hourly rate of $112.22 for a social worker is unreasonable. The applicant argues that a higher hourly rate should be permitted, and she seeks an hourly rate of $149.61. In further support of her request for a higher hourly rate, she relies on S.K. v. Aviva Insurance Company, 2020 CanLII 94803 (ON LAT) (“S.K.”) wherein the Tribunal deemed that an hourly rate of $135.00 was appropriate for a social worker.
56The applicant also submits that the respondent’s hourly rate of $58.19 for a driving instructor is unreasonable. She argues that the respondent is not permitted to unilaterally dictate the applicable hourly rate without providing reasons for the reduction. The applicant also submits that the driving instructor’s travel time to and from the applicant’s residence is a reasonable and necessary expense, and she relies on J.D. v. Intact Insurance Company, 2022 CanLII 4212 (ON LAT).
57The respondent maintains its reasons for denying the applicant’s entitlement to the unapproved balance of the treatment plan.
58I find that the evidence supports a finding that the cost of $200.00 for the completion of a treatment plan is reasonable and necessary pursuant to s. 25(1)3 of the Schedule. I am satisfied by the applicant’s submissions that more than an hour is reasonably required to complete the treatment plan.
59However, I find that the remaining balance of the psychological services in dispute is not reasonable and necessary.
60I find that the evidence does not support a finding that a higher hourly rate of $135.00 for a social worker is reasonable and necessary. The PSG does not provide an hourly rate for social workers. As an unregulated provider, the PSG provides that the maximum hourly rate is $58.19. The applicant has not directed me to evidence to support an hourly rate of $149.61 for the social worker. Further, while the applicant relies on S.K., this decision is not binding, and it’s distinguishable. In the present case, there is no evidence of the social worker’s qualifications to support an hourly rate of $135.00.
61I further find that the evidence does not support a finding that a higher hourly rate of $150.00 for a driving instructor is reasonable and necessary. The PSG does not provide an hourly rate for a driving instructor. As an unregulated provider, the PSG provides the maximum hourly rate of $58.19. The applicant has not directed me to evidence to support an hourly rate of $150.00 for the driving instructor. Moreover, while the applicant claims that the driving instructor’s travel time to and from the applicant’s residence is a reasonable and necessary expense, I note that the respondent approved the driving instructor’s travel time at the hourly rate of $58.19 as opposed to the hourly rate of $150.00.
62Finally, I find that the applicant has not met her burden of proving that the costs of planning services in the amount of $250.00 is reasonable and necessary. The applicant did not address this unapproved balance in her written submissions.
63Accordingly, I find that the applicant has proven that $87.78 for the unapproved balance for psychological services is payable.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given my findings above, I find that the applicant is entitled to interest for the IRB and the psychological services. The applicant is not entitled to interest for the balance of the issues in dispute.
Award
65Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. When such a finding is made, the Tribunal may order up to 50% of the withheld or delayed payment along with interest at the rate of 2% per month, compounded monthly.
66The applicant seeks an award with respect to the respondent’s handling of her claim for accident benefits. She submits that the respondent acted unfairly from the onset of the claim. She states that the respondent’s conduct in adjusting her claim calls for punitive measures as it failed to support the applicant during a period of convalescence, while she was self-represented and unable to work. The applicant further submits that the respondent’s inclusion of the adjuster’s log notes at Tab 10 of its document brief, produced for the first time with its written hearing submissions, amounts to trial by ambush and warrants punitive action. She also requests that the Tribunal draw an adverse inference in her favour as the respondent was required to produce these adjuster’s log notes in accordance with the deadline set out in the CCRO and it did not do so. The applicant argues that the respondent’s conduct has been excessive, imprudent, stubborn, inflexible, unyielding, and immoderate.
67The respondent denies that an award is warranted. It states that it did not start handling the applicant’s accident benefits claim until late 2021, after accepting priority. It claims that it enclosed the adjuster’s log notes at Tab 10 of its brief to show that it was not acting in bad faith as alleged by the applicant, and it denies any prejudice to the applicant for not being able to review these notes prior to the written hearing. The respondent further submits that it is not the insurer’s obligation to remind the applicant to submit an OCF-3, and the previous insurer would have informed the applicant of its obligations surrounding the form submissions. Moreover, the applicant retained counsel prior to the deadline to submit an OCF-3, and the applicant ought to have known whether she had submitted an OCF-3.
68It is well settled that an award should not be ordered simply because the insurer made an incorrect decision. Rather, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for awarding a s. 10 award is high.
69I find that an award is not warranted for the applicant’s claim for a portion of the unapproved balance for psychological services in the amount of $141.81 (Issue 3) and for psychological services in the amount of $87.78 (Issue 4). The evidence does not support that the respondent’s actions rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. As evidenced in the various correspondence authored by the respondent, the respondent relied on the information it had to adjust the applicant’s claim for accident benefits.
70Nevertheless, I find that an award is warranted as it relates to the applicant’s claim for an IRB in the amount of $400.00 per week for the period of March 1, 2023, to November 2, 2023. As indicated above, an IRB is payable for this period pursuant to s. 36(6) of the Schedule. Despite this, the respondent did not compensate the applicant in accordance with the Schedule; rather, it maintained its position that the applicant is not entitled to any IRB. While I appreciate that the OCF-3 was submitted late, this does not excuse the respondent’s failure to properly adjust the applicant’s accident benefit claim and to respond to the submission of the OCF-3 within 10 business days, as required by the Schedule.
71I further find that the respondent acted unreasonably when it waited until November 2, 2023, to advise the applicant that she was not eligible for an IRB because of the late submission of her OCF-3 when it knew that there was no OCF-3 on file and that no specified benefits were being paid to the applicant. Indeed, a review of the adjuster’s log notes found at Tab 10 of the respondent’s written hearing brief, documents that were withheld from the applicant in breach of the CCRO, indicate that on several occasions, the respondent noted that there is no OCF-3 on file and no specified benefits; yet, when the applicant’s counsel inquired on September 20, 2022, whether there was an OCF-3 on file and whether the applicant was receiving specified benefits, the respondent did not respond to this inquiry. No reason has been provided as to why the respondent did not respond.
72Overall, I find that the respondent’s conduct has been excessive, imprudent, stubborn, inflexible, unyielding, and immoderate as it relates to the applicant’s claim for an IRB.
73Given my finding, I must further determine the quantum of the award. It is well established that in determining the quantum of an award, the Tribunal may consider the following factors:
the blameworthiness of the insurer’s conduct;
the vulnerability of the insured person;
the harm or potential harm directed at the insured person;
the need for deterrence;
the advantage wrongfully gained by the insurer;
other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and
the overall length of the delay.
74In my view, the blameworthiness of the respondent’s conduct, the vulnerability of the applicant, the need for deterrence, and the overall length of the delay are the applicable factors. The respondent provided no reason for maintaining a position that is not supported by the Schedule for nearly two years. Neither party made submissions as to the quantum of the award. While the quantum of the award should be large enough to serve as a deterrent, I find that the highest allowable award would be excessive. In the circumstances, I find that an award of 35% is appropriate because I have not been directed to any evidence to support a finding that the respondent’s conduct was egregious and that it calls for the maximum amount of the award, and I find that the evidence supports an award higher than the minimal amount given the length of the delay. An award of 35% provides a balance of the factors set out above.
75Accordingly, the respondent is liable to pay an award of 35%, plus interest, for an IRB in the amount of $400.00 per week from March 1, 2023, to November 2, 2023.
ORDER
76For the reasons outlined above, I find that:
The applicant is entitled to an IRB in the amount of $400.00 per week from March 1, 2023, to November 2, 2023, less any employment income earned during this period pursuant to s. 7(3) of the Schedule.
The applicant is entitled to $141.81 for psychological services (Issue 3), and to $87.78 for psychological services (Issue 4). She is not entitled to the balance of the treatment plans in dispute.
The applicant is entitled to interest with respect to the IRB and the psychological services.
The respondent is liable to pay an award of 35%, plus interest, for the IRB.
77The application is granted in part.
Released: February 25, 2025
Ludmilla Jarda
Adjudicator