Licence Appeal Tribunal File Number: 23-015119/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:
Bharatbhai Patel
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Doug Wright, Counsel
For the Respondent: Alanna Rozalowsky, Counsel
HEARD: By way of written submissions
OVERVIEW
1Bharatbhai Patel, the applicant, was involved in an automobile accident on December 17, 2021, 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 following issue is in dispute:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3The Case Conference Report and Order (“CCRO”), dated April 26, 2024, lists the following issues in dispute:
i. Is the applicant entitled to $4,037.51 for occupational therapy services, proposed by NCCO Rehabilitation Services in a treatment plan dated February 16, 2024?
ii. Is the applicant entitled to the assessments proposed by Med-Assess, as follows:
a) $2,004.98 for a concussion assessment, in a treatment plan dated January 19, 2024; and
b) $2,038.43 for a bio-mechanical and orthopedic assessment, in a treatment plan dated March 21, 2024?
c) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
d) Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant in his submissions states that the only issue in dispute in this hearing is his claim for an award under s. 10 of Reg. 664. In addition, there is an email from the applicant to the Tribunal dated December 13, 2024, advising that the treatment plans in dispute listed in the CCRO are withdrawn. The respondent agrees that the only issue in dispute is the award. Therefore, I have amended the issues in dispute for the purposes of this hearing.
RESULT
5I find that the applicant is entitled to an award of 25% of the amount of the treatment plans that were denied by the respondent. The amount of the award is $1,534.69.
ANALYSIS
The applicant is entitled to an award under s. 10 of Reg. 664
6The applicant is entitled to an award under s. 10 of Reg. 664.
7Pursuant to s. 10 of Reg. 664, the Tribunal may grant an award of up to 50 percent of the total benefits payable, if it finds that an insurer unreasonably withheld or delayed the payment of benefits. An award may be granted where an insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove entitlement to the benefits claimed.
8The applicant claims that he is entitled to an award under s. 10 of Reg. 664 in connection with the respondent’s refusal to remove him from the Minor Injury Guideline (“MIG”) until December 13, 2023.
9The respondent disputes that the applicant is entitled to an award.
Background Facts:
10The applicant was injured in the subject accident on December 17, 2021. He made an application for accident benefits on January 10, 2022, which was received by the respondent on March 7, 2022.
11On February 17, 2022, the applicant provided the respondent with a Disability Certificate, dated January 6, 2022, prepared by Dr. R. V. Mistry, family physician, which listed a pelvic fracture, in addition to other injuries.
12The adjuster’s note dated March 7, 2022, notes that the applicant sustained a possible pelvic fracture and that further clinicals were required to confirm the injury.
13There was a valid OCF-5 on file signed by the applicant, allowing the respondent to obtain medical records. There are copies of two letters from the respondent to Dr. Mistry, dated March 8, 2022 and April 4, 2023, requesting his records.
14On April 4, 2022, the clinical notes and records (“CNRs”) of Dr. R. V. Mistry were received by the respondent. The respondent submits that the CNRs were illegible and that the imaging reports contained in the records were normal.
15The applicant was paid an income replacement benefit (“IRB”) commencing on April 6, 2022. IRB payments were ceased effective November 18, 2022, due to non-compliance with s. 44, after the applicant failed to attend an insurer’s examination (“IE”).
16The respondent denied two treatment plans dated January 10, 2022 and May 25, 2022, from Om Sai Physiotherapy, in the amount of $3,985.50 and $2,153.44 respectively, on the basis that the applicant was in the MIG.
17An entry dated December 22, 2022, in the adjuster’s log notes, confirms that an x-ray report was received on November 19, 2022, from Mississauga Hospital, confirming that the applicant sustained a pelvic fracture. The explanation of benefits prepared by the respondent dated December 22, 2022, states, “We acknowledge receipt of your x-ray report dated December 17, 2021, which has been received in [our] office November 19, 2022. After review of [the] document, we have confirmed pubic ramus fracture and will proceed with reinstatement of your IRB as of November 19, 2022”. IRB payments were immediately reinstated by the respondent.
18The applicant was self-represented until September or October 2023, when he retained counsel. Counsel for the applicant sent a letter to the respondent on October 6, 2023, advising of its retainer and requesting a copy of the accident benefits file.
19The applicant applied to the Tribunal on December 12, 2023, in respect of a number of denials made by the respondent, including its decision to keep him in the MIG.
20The day after the application was made to the Tribunal, the respondent agreed to remove the applicant from the MIG. The explanation of benefits dated December 13, 2023, provided by the respondent, states, “Based on the medicals we now have on file and in addition to your upcoming hand specialist appointment in March 2024, we have removed you from the minor injury guideline”. The respondent notes that it received the updated CNRs of Dr. Mistry in September 2023.
Parties’ submissions
21The applicant submits that there is no evidence as to what the respondent did to verify the fracture that was identified on the Disability Certificate prepared by Dr. Mistry, dated January 8, 2022, particularly given that it had been provided with a medical authorization from the applicant. The applicant further submits that clearly the respondent verified that there was a fracture by at least November 19, 2022, when it received the x-ray report. Yet, despite confirming the fracture, it waited another year to remove the applicant from the MIG. The applicant submits that the respondent only removed him from the MIG after he retained counsel, and it received the Tribunal application. The applicant submits that there is no evidence that the respondent had received any “new” information at the time of its decision to remove him from the MIG.
22The applicant submits that as a result of the respondent’s refusal to remove him from the MIG for almost two years after the accident, the applicant was unable to obtain treatment and he was unable to access any attendant care. With respect to his claim for attendant care, the explanation of benefits dated May 3, 2024, states that the respondent had accepted that the applicant was entitled to an attendant care benefit up to $3,000.00 per month based on a Form 1, dated January 19, 2024.
23The applicant further submits that in terms of quantum of the award, he is entitled to an award of up to 50 percent of the amount of benefits to which he is entitled. With respect to his entitlement to attendant care, he submits that if he had been removed from the MIG at least by November 2022, he is entitled to a benefit of $39,000.00 ($3,000.00 x 13 months). With respect to entitlement to medical benefits, the total amount of the treatment plans denied based on the applicant’s injuries being within the MIG, totals $6,138.74.
24The respondent submits that little to no weight should be placed on the applicant’s submissions, as the applicant did not comply with the CCRO by providing the particulars of the award prior to filing his submissions. In the alternative, the respondent submits that the applicant has not provided evidence that it unreasonably withheld or delayed payment of benefits which would rise to the level of conduct which would trigger an award. The respondent further submits that it regularly reviewed all evidence and documents relating to the claim as they were received. The respondent did not make any submissions on quantum.
25The applicant in his reply submissions submits that the respondent has not offered any explanation as to why it waited at least 13 months, from November 19, 2022 to December 13, 2023, to remove him from the MIG.
The applicant is entitled to an award
26I find that the respondent unreasonably withheld payment of benefits by keeping the applicant within the MIG, after receipt of the x-ray report confirming that he suffered a fracture.
27With respect to the respondent’s submission that the applicant did not provide the particulars of the award claim in compliance with the CCRO, I find upon review of the CCRO that there was no order with respect to providing particulars of the award. Therefore, I find that the applicant has complied with the CCRO and his submissions are considered in their entirety.
28I find that the applicant has proven that the respondent unreasonably withheld or delayed the payment of benefits. I find that the respondent verified that the applicant had suffered a fracture by at least November 19, 2022, when it received the x-ray report. This was confirmed in the Explanation of Benefits provided by the respondent dated November 22, 2022. Despite confirming the fracture, which is a non-minor injury that falls outside of the s. 3 definition in the Schedule, the respondent did not remove the applicant from the MIG at this time. Instead, the respondent waited until receipt of the application to the Tribunal, disputing the issue of the MIG. On the day following receipt of the application to the Tribunal, the respondent removed the applicant from the MIG.
29I agree with the applicant’s submission, that the respondent has not provided any explanation as to why it did not remove the applicant from the MIG following its receipt of evidence confirming that he suffered a fracture. The respondent further did not provide any submissions as to why it waited until December 13, 2023, to remove the applicant from the MIG, or on what basis it made this decision if it could not have been made earlier.
30I find on a balance of probabilities that the applicant has proved that the respondent acted unreasonably in maintaining its MIG position, after receipt of the x-ray report confirming the applicant’s fracture on November 19, 2022. I find it unreasonable that the respondent waited 13 months to remove the applicant from the MIG and only following receipt of his application to the Tribunal. There is no doubt that this resulted in an unreasonable withholding and delay in the payment of a greater tier of benefits that may have aided in the applicant’s recovery.
31The applicant seeks an award of 50 percent of all benefits payable. A 50 percent award is reserved for the most egregious conduct on the part of the insurer and is not warranted in this case. I find that the respondent’s conduct should not attract the maximum award, however, in keeping with the fact that the respondent waited 13 months to remove the applicant from the MIG, which delayed his entitlement to further medical benefits, I find that 25% is sufficient. In addition, as a result of the respondent’s delay in removing the applicant from the MIG, the applicant was forced to seek relief from the Tribunal, which resulted in additional costs to him.
32For the reasons set out above, I find that the applicant is entitled to an award of 25% of the amount of the disputed treatment plans. The amount of the award is $1,534.69.
33With respect to the applicant’s claim for attendant care benefits, I find that no award is payable. I find that the respondent did not unreasonably withhold or delay payment of attendant care benefits. I find that the Form 1 was submitted on January 19, 2024, after the applicant had been removed from the MIG and entitlement to attendant care benefits was approved by the respondent. As a result, an award under s. 10 of Reg. 664 is not warranted for attendant care benefits.
ORDER
34For the reasons set out above, I find that the applicant is entitled to an award of 25% of the amount of the treatment plans that were denied by the respondent. The amount of the award is $1,534.69.
Released: August 13, 2025
Melanie Malach Adjudicator