May 04, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
GAE and Aviva Insurance Canada, 2018 CanLII 13185 ON LAT 17-000317
Date of Decision: February 16, 2018
Heard Before: Adjudicator S.F. Mather
MIG and MEDICAL BENEFITS: application for benefits considered complete due to extraordinary circumstances; applicant passenger in an acquaintance’s car; driver will not release accident report to her; insurer fails to provide proper notice in denial of claims;
GAE was car accident on January 2, 2015 and sought benefits pursuant to the SABs from the MVAC. The Fund denied the claim for benefits on the basis that the Application for Accident Benefits was incomplete because GAE did not provide a “Motor Vehicle Accident (Police) Report” confirming her involvement in the accident.
GAE disagreed with The Fund’s decision and submitted an application to the LAT on January 17, 2017. GAE submits that the Treatment and Assessment Plans submitted to The Fund are “deemed approved” because, in GAE’s view, the individual plans were not properly denied, and six out of the eight plans were not responded to within 10 days.
After the application was filed with the Tribunal, Aviva accepted priority for the claims and was substituted for The Fund as Aviva in this matter. The files were transferred to Aviva on February 6, 2017 and Aviva filed its response on February 28, 2017, maintaining the same defences as The Fund for denying the claim.
- Is GAE barred by s. 55 of the Schedule from commencing an application with the Tribunal?
If the application is properly before the Tribunal, the issues in are:
- Is GAE entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated February 6, 2015?
- Is GAE entitled to receive a medical benefit in the amount of $1,300.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 14, 2015?
- Is GAE entitled to receive a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated July 8, 2015?
- Is GAE entitled to receive a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated October 9, 2015?
- Is GAE entitled to receive a medical benefit in the amount of $2,789.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated January 21, 2016?
- Is GAE entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated July 8, 2015?
- Is GAE entitled to receive a medical benefit in the amount of $2,486.00 for an in-home attendant care assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 22, 2015?
- Is GAE entitled to receive a medical benefit in the amount of $2,610.30 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 23, 2015?
- The application is not barred by s. 55 of the Schedule.
- The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
- GAE is entitled to the following benefits:
- a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated October 9, 2015
- a medical benefit in the amount of $2,789.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated January 21, 2016
- a medical benefit in the amount of $2,486.00 for an in-home attendant care assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 17, 2015
- a medical benefit in the amount of $2, 610.30 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) dated July 07, 2015.
- GAE is not entitled to the following benefits:
- a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated February 6, 2015
- a medical benefit in the amount of $1,300.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 14, 2015
- a medical benefit in the amount of $1,494.50 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated July 8, 2015
- a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment and Assessment Plan (OCF-23) dated July 8, 2015
Is GAE barred by s. 55(1) of the Schedule from commencing an application with the Tribunal?
Aviva raises the issue of whether GAE is prevented by s. 55 of the Schedule from filing an application with the Tribunal. Aviva argues that GAE is not entitled to have her application heard because she failed to do the following in contravention of s. 55:
a. notify The Fund of the circumstances giving rise to her claim for benefits within seven days after the accident or as soon as practicable after that day as required by s. 32(1) of the Schedule; and
b. submit her application for benefits within the time prescribed by s. 32 of the Schedule.
In her materials submitted for the written hearing, GAE did not provide any evidence to explain why she did not notify the Fund about the January 2, 2015 accident until March 11, 2015 when she filed her application for benefits with The Fund.
As a result, the Adjudicator allowed GAE an opportunity to provide evidence and further submissions on the issue. The Adjudicator also allowed Aviva to respond to any new evidence filed by GAE. In addition to the materials filed by the parties in response to my Order, the Tribunal also received:
- A November 6, 2017 letter from GAE alleging that Aviva’s counsel violated the Rules of Professional Conduct in its s. 55 response submissions by misstating facts or law, knowingly misstating the contents of documents and knowingly asserting a fact as true when its truth cannot reasonably be supported by the evidence. The letter also included the following further documentary evidence:
- a redacted copy of GAE’s retainer agreement with her counsel dated January 19, 2015
- an undated copy of a Toronto Police Service Records Release
- a September 15, 2016 copy of a letter from Peel Regional Police stating that because the “client” is not listed on the accident report the police would not release a copy of the accident report without authorization from the driver.
- A November 8, 2017 letter from Aviva objecting to GAE’s allegations of fraud or illegal conduct.
Aviva argues that because reply submissions are not provided for in my Order the LATI should not consider the submissions in GAE’s letter. In the alternative Aviva asks me to give GAE’s letter little weight. Aviva also submits that GAE’s statement in her application for benefits that the information contained in her application is true and correct is a misrepresentation because the date on the application is wrong.
While Aviva is correct in its submission that the adjudicator’s Order did not provide for GAE to submit reply submissions to Aviva’s s. 55 response submissions, procedural fairness requires that her further submissions considered for the reason that Aviva filed documentary evidence with its reply that GAE must have an opportunity to respond to.
The Adjudicator give both the November 6th and November 8th letters little weight for the reason that they do not contain anything that will assist me in deciding the issues before me. While the retainer agreement confirms the date that GAE retained counsel, the letters from the Toronto and Peel Police do not identify GAE as the client whose request for a copy of an accident report was being denied.
The Adjudicator agreed with GAE’s allegations that there are misstatements of facts in Aviva’s s. 55 submissions, he did not rely on these facts.
In her s. 55 submissions, GAE argues that the s.55 issue is improperly raised as it was not identified as an issue in the Order made at the Case Conference. In the reasons for my Order allowing GAE the opportunity to file further evidence, the Adjudicator determined that the issue must be heard. The issue is clearly raised in Aviva’s response to the application and in Aviva’s submissions for the hearing. GAE did not object to the issue being raised in her reply submissions for the hearing and in fact addresses the issue in the first paragraph of her reply submissions. The Adjudicator allowed GAE to file further evidence on the issue to ensure that there is no prejudice to her by the fact that it was not set out in the Order made at the Case Conference.
Notification to Insurer
The Adjudicator is satisfied on the balance of probabilities that GAE notified The Fund as soon as practicable by filing her application for benefits on March 11, 2015. Upon receipt of the application, The Fund received the required notice of GAE’s intention to apply for benefits. The evidence is found in the statement that GAE provided to Claimspro Inc. (the adjuster for The Fund) on June 30, 2015; her affidavit sworn October 20, 2017 and the affidavit of D. S., a legal assistant with Kalsi & Associates, sworn October 23, 2017.
These statements confirm that GAE retained legal counsel to represent her in her claims arising from the accident on January 19, 2015 and detail the steps taken by GAE and her counsel between January 19, 2015 and March 11, 2015 to obtain the licence plate number of the car and the name and address of the owner of the vehicle.
The Adjudicator based his conclusion that GAE gave the notice required by s. 32(1) “as soon as reasonably practicable” on the submitted evidence. The Adjudicator is also satisfied that GAE’s counsel took reasonable steps to determine enough details of the accident to report the accident to an insurer, and that the decision made on March 11, 2015 to file the application with The Fund gave the Fund notice of GAE’s intention to claim benefits as soon as practicable in the circumstances.
Aviva takes great issue with the fact that the application for benefits that was submitted on March 11, 2015 is dated January 2, 2015, the same day as the accident. In Aviva’s view, if the application was completed on the same day of the accident, there is no excuse for The Fund not being notified until three months later. Aviva first raised this issue in its initial submissions for the hearing.
While GAE does not address the issue of the date on the application in her affidavit, there is evidence that GAE did not retain counsel until January 19, 2015 which satisfied the Adjudicator that the date on the application is in error.
Aviva argues that GAE had plenty of missed opportunities to provide notice to The Fund. The Fund is the “last resort” for victims of motor vehicle accidents when there is no insurance coverage. An applicant is expected to have investigated the possibility of insurance and discovered that there was no recourse before applying to the Fund. In the Adjudicator’s view, it was reasonable that GAE obtain the licence plate number of the car and the name and owner of the driver before notifying The Fund of her intention to claim benefits.
Aviva also argues that the affidavit evidence of GAE is not credible and has blatant discrepancies which are an attempt to revise the history of her accident benefit and tort claims. Aviva submits that the case of Faryna v. Chorney establishes the test for credibility of a witness. The Adjudicator determined that in the circumstances of this accident and the circumstances of GAE at the time of the accident, the statements made in the affidavit of GAE to be unreasonable. It is reasonable that GAE, having only been in the Canada for less than three weeks prior to the accident, would not have detailed knowledge of the accident location or the home address of the driver K.J. It is also reasonable that, at the time of the accident, she would not have had any knowledge of the automobile accident insurance scheme in the province of Ontario. IN the Adjudicator’s opinion, she did well in seeking legal advice by January 19, 2015.
Aviva also argues that the evidence GAE relies on is evidence of steps taken with respect to her possible tort action and not evidence of steps taken by GAE and her counsel with respect to her claim for automobile accident benefits. In making this argument, Aviva refers to the letters to the driver and the owner of the vehicle attached as exhibits to the affidavit of D.S.
In the Adjudicator’s view, what is important is that, following the accident, GAE and her counsel took steps to determine who the owner and insurer of the vehicle were. It does not matter that the letters sent by GAE’s counsel to the driver and the owner of the vehicle were sent for the purpose of the tort action because the end goal was the same – to obtain the information necessary to notify the insurer of an intention to make a claim.
Timeliness of Application
Upon being notified of a person’s intention to apply for one or more benefits, the insurer is required to promptly provide the person with the appropriate application forms and other information. An applicant is required to submit a completed and signed application form to the insurer within 30 days after receiving the forms. If an application is incomplete, the insurer must notify GAE within 10 business days after receiving the application.
In this case, GAE “skipped” the step of notifying the insurer and waiting for an application form and instead submitted an incomplete application to The Fund on March 11, 2015, which she relies upon as her notice of intention to claim a benefit. Because The Fund did not provide the application forms to GAE as is contemplated by s. 32(2) of the Schedule, a finding of whether the application was made within the 30 days does not decide the issue.
On this basis the Adjudicator found that GAE complied with the requirements of the Schedule when she submitted her application to The Fund on March 11, 2015 (albeit incomplete). Significantly, The Fund acknowledged receipt of the application and requested further documents from GAE.
The Schedule distinguishes between a late application and an incomplete application. The remedy for a delay in submitting a completed application is found in the Schedule. The Schedule provides that no benefit is payable before an applicant provides the missing information. Section 55(1) only bars a claim to the Tribunal if the insured person has not notified the insurer of the claim for benefit or has not submitted an application for the benefit within the time period prescribed by the Schedule. It does not bar an applicant from filing an application with the Tribunal if an application is incomplete or unsigned.
Being satisfied that GAE notified The Fund of the circumstances giving rise to her claim for benefits as soon as practicable and that the application was submitted within the times prescribed by the Schedule, the Adjudicator found that GAE is not barred from commencing a proceeding before the Tribunal.
Is the Application for Benefits Complete?
The Schedule prescribes the procedures for claiming benefits and the responsibilities of GAE and insurer. If an application is incomplete, the insurer is required to give notice to the applicant advising them of the missing information that is required or that the applicant’s signature is missing, as appropriate.
Section 10 of the Application for Benefits Form (OCF-1) provides that for applications to The Fund, the application will not be considered complete until GAE provides the three additional forms:
• NOTICE OF COLLECTION OF PERSONAL INFORMATION FORM;
• Form 3 – Section 6 MVACF Application for Statutory Accident Benefits;
• Motor Vehicle Accident (Police) Report (“Police Report”).
The application The Fund received on March 11, 2015 was incomplete because it was not signed by GAE and did not include the three additional forms required for applications to The Fund. The Fund gave notice to GAE that the application was incomplete by its letter dated March 19, 2015 requesting the three additional forms required for an application to the Fund and that the application be signed.
By letter dated August 20, 2015, GAE provided Aviva with a signed application, the Notice of Collection of Personal Information Form and a Form 3 but did not provide a copy of a Police Report. An Explanation of Benefits form dated August 25, 2015 confirms that by that date Aviva was in receipt of a signed application, the Notice of Collection of Personal Information Form and a Form 3 and was only missing the Police Report.
GAE argues that a copy of a Police Report is not mandatory for an application for benefits to be complete. GAE relies on the decision of the FSCO in Motor Vehicle Accident Claims Fund v. Berta Avdeeva to support his position. In Avdeeva the Director’s Delegate found that the Motor Vehicle Accident Report is not mandatory when a police report did not exist.
Aviva argues that this case may be distinguished from Avdeeva because in this case a Police Report was prepared, and in this case that GAE was required to make efforts to obtain a copy of the report and that there is no evidence that she did so. In Aviva’s view, the application remains incomplete until GAE provides a Police Report or she provides evidence that she applied for and was unable to obtain a report.
GAE argues that passengers are not always listed in a Police Report and that she did not have sufficient information about the accident to obtain a copy of the report. GAE has not provided any evidence that she or her counsel made any attempt to obtain a Police Report for this accident. GAE relies on the affidavit evidence of D.S., who states in his affidavit that it is common in his experience, that passengers are not listed on a Police Report, and that the police will not release a report without the authorization of the driver or owner of the vehicle. D.S. further states that the police require, among other information, the occurrence number, the exact location of the accident, and the attending officer’s name and badge number.
Based on the evidence of both GAE and Aviva on this issue, the Adjudicator was satisfied that, in this case, a Police Report is not required to complete the application, and GAE that she did not obtain any details at the accident scene and that K.J. was completely uncooperative in providing any details of the accident, including the insurance coverage. The adjudicator notes that he facts in this case are exceptional in that GAE was a passenger in a vehicle driven by an acquaintance who refused to co-operate by refusing to provide insurance details or the name and address of the owner of the vehicle.
In conclusion the Adjudicator was satisfied that GAE did her best to obtain the vehicle information that she did obtain.
Is the application complete:
The Schedule is the key to determining what information is mandatory for an application to be complete. The Adjudicator was satisfied that by August 25, 2015, The Fund, after a reasonable review of the application, was in a position to determine whether a benefit was payable.
Are Benefits Payable?
An insurer is required to pay medical and rehabilitation benefits to insured persons who sustain an impairment as a result of an accident. An Insurer is not required to pay a benefit before an applicant provides missing information to complete an application and before an application is signed
Aviva raises several arguments with respect to the issue of entitlement to benefits. It argues:
• That because GAE did not notify The Fund of her intention to claim benefits within the time period required by the Schedule and because the she did not provide a reasonable explanation for the delay, The Fund was permitted under s. 32(10) to delay determining both GAE’s entitlement to a benefit and the payment of the benefit.
• That benefits are not payable because GAE did not provide The Fund with her OHIP records which were required to reasonably assist it in determining GAE’s entitlement to a benefit.
• GAE is not entitled to medical benefits because she did not suffer any accident-related impairments.
The Adjudicator already determined that The Fund was notified as soon as practicable after the collision, Once her application was complete on August 25, 2015 The Fund was not entitled to delay the determination of GAE’s entitlement to benefits or to delay payment of the benefits for 45 days after it received the application.
On June 18, 2015 The Fund first asked GAE to sign an OHIP consent form to allow it to obtain her OHIP records for the purpose of assessing her initial and ongoing entitlement to benefits. The Arbitrator determined that he status of GAE’s OHIP application was information reasonably required for The Fund to determine GAE’s entitlement to a medical benefit. The difficulty for Aviva, however, is that The Fund did not deny payment of the benefits based on the lack of OHIP information. The sole reason The Fund provided for denying the benefits was the missing Police Report.
S. 38 Claims for Medical and Rehabilitation Benefits
As of August 25, 2015, once her application for benefits was complete, GAE was in a position to apply for medical and rehabilitation benefits and for payment of the costs of examinations and assessments.
Section 38 of the Schedule sets out the procedures that both insurers and insured persons must follow when a claim is made for medical and rehabilitation benefits or approvals of assessments or examinations. If an insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice required under s. 38(8) must also let the insured person know that it is taking the position that the Guideline applies. An insurer who does not give notice in compliance with the Schedule faces the prescribed consequences.
he Explanation of Benefit forms list failure to provide a copy of the Police Report as a reason for not assessing GAE’s claim for benefits. After August 25, 2015, the only reason the benefits were denied was GAE’s failure to provide a copy of the Police Report.
GAE argues that all treatment and assessment plans in issue are deemed payable by the Schedule for the reason that Aviva did not properly deny the plans. GAE argues that the insurer did not place GAE within the Minor Injury Guideline and did not provide any medical reasons for denying the benefits. GAE also argues that The Fund did not respond to six of the eight plans in issue within the 10 days, as required by the Schedule.
Aviva submits that the notices were all delivered within 10 days of the Health Care Claims for Auto Insurance (“HACI”) submission and argues that inadequate notice does not automatically entitle an insured to payment of benefits. Aviva argues that GAE is still required to prove all required elements of the claim and that I must consider if the treatment plans are “reasonable and necessary.”
The Adjudicator reviewed the notices provided by Aviva for each treatment plan and found that the notices do not comply with the requirement in s. 38(8) for three reasons:
• The notices do not advise GAE that Aviva is taking the position that the Minor Injury Guideline applies as required by s. 38(9) of the Schedule.
• The notices do not provide any medical reasons.
• The notices do not provide any other reasons why the services, assessment or examination were not reasonable and necessary.
The notices only advise GAE that The Fund considered the application to be incomplete and it would not assess the claim or pay benefits until GAE’s application package was complete. Once the application was complete on August 25, 2015, Aviva was required to comply with the requirements of s. 38(8) when providing the notices that are required by that section and it did not do so.
On this basis the Adjudicator found:
• Aviva is prohibited from taking the position that the insured person suffered an impairment to which the Minor Injury Guideline applies.
• Aviva must pay for the goods, services, assessment and examinations described in the treatment plans before me.
The burden of proof rests with GAE to show that the treatment plans were submitted and improperly denied. The only evidence with respect to the treatment plans and denials that I have received from GAE is six EOBs included in her written submissions for the hearing. While GAE argues that six of eight treatment plans were not responded to within eight days, she does not provide any evidence to support this contention.
The Adjudicator found GAE is not entitled to payment of the treatment plan for physio therapy dated July 8, 2015 and denied on July 14, 2015 because she has not provided any evidence of either the treatment plan or the denial of the plan. GAE is entitled to payment of the treatment plans that were submitted after August 25, 2015 for the reason that they were not properly denied and there is no evidence that Aviva has subsequently provided a proper notice under s. 38(8) of the Schedule.