December 05, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
NF v Aviva Insurance Company of Canada LAT 17-000456 , 2017 CanLII 77344 (ON LAT)
Decision Date: November 14, 2017
Heard Before: Adjudicator S. F. Mather
MIG and ENTITLEMENT TO BENEFITS: applicant (passendger) denied insurance information by driver; applicant notifies MVAC Fund of accident; applicant MVAC Fund beyond 7 day limit; adjudicator rules the delay in notification reasonable given that applicant did not have access to insurance information of driver;
NF was involved in a motor vehicle collision on January 2, 2015 and sought various benefits from the Motor Vehicle Accident Claims Fund. The MVAC Fund provides statutory accident benefits in cases where a person injured in an automobile accident does not have recourse to automobile insurance. The MVAC Fund refused to determine if NF was entitled to any benefits or pay on the basis that his application was incomplete because he did not provide a “Motor Vehicle Accident (Police) Report”. The MVAC Fund was looking for confirmation that NF was involved in an accident.
NF disagreed with this decision and applied to the LAT for arbitration. After this application was commenced, Aviva accepted priority for the claims and the files were transferred from The MVAC Fund to Aviva on February 6, 2017. In its written response to the application Aviva denied any liability to pay SABs and submitted that NF is barred by s. 55 of the Schedule from filing an application with the Tribunal because it did not notify The MVAC Fund of the accident within the time limit provided for in section 32(1) the Schedule.
- Is NF barred by s. 55 of the Schedule from commencing an application with the Tribunal?
- If NF is not barred from commencing an application, then I must decide:
- Are NF’s injuries predominantly subject to treatment within the Minor Injury Guideline?
- Is NF entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment Plan dated March 18, 2015?
- Is NF entitled to receive a medical benefit in the amount of $2,486.00 for an in-home/attendant care assessment pursuant to a Treatment Plan dated July 30, 2015?
- Is NF entitled to receive a medical benefit in the amount of $2,599.00 for a chronic pain assessment pursuant to a Treatment Plan dated August 4, 2015?
- Is NF entitled to receive a medical benefit in the amount of $2,644.20 for a psychological assessment pursuant to a Treatment Plan dated August 11, 2015?
- Is NF entitled to receive a medical benefit in the amount of $2,659.01 for physiotherapy services pursuant to a Treatment and Assessment (“Treatment Plan”) dated March 30, 2016?
- 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.
- N. F. is entitled to the following benefits:
- a medical benefit in the amount of $2,200.00 for physiotherapy services pursuant to a Treatment Plan dated March 18, 2015;
- the cost of examinations in the amount of $2,486.00 for an in-home/attendant care assessment pursuant to a Treatment t Plan dated July 30, 2015.
- a medical benefit in the amount of $2,644.20 for a psychological assessment pursuant to a Treatment Plan dated August 11, 2015.
- a medical benefit in the amount of $2,599.00 for a chronic pain assessment pursuant to a Treatment Plan dated August 4, 2015.
- a medical benefit in the amount of 2,659.01 for physiotherapy treatments pursuant to a Treatment Plan dated March 30, 2016.
regarding their entitlement to SABs or in respect to the amount of SABs to which they are entitled if the insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for a benefit within the times prescribed in the Schedule.
Aviva submits that NF is barred under s. 55 of the Schedule from making an application to the Tribunal because he did not notify Aviva of his intention to claim benefits as soon as reasonably practicable and he did not submit a claim for benefits until six months after the accident.
NF has the burden of proof to show that he notified the insurer as soon as practicable of the circumstances that gave rise to the claim for a benefit or that he submitted an application within the time required by the Schedule. NF’s submissions do not address the s. 55 issue.
On January 2, 2015, NF was a front seat passenger in a Toyota Solar driven by when the vehicle was involved in a collision on Highway 401. The OPP and an ambulance attended at the scene. NF did not obtain the police officer’s name or badge number or any information with respect to the licence plate numbers, ownership or insurance for the vehicles involved in the accident, NF did not receive any treatment at the scene and was not transported to hospital. He told the paramedic that he was “o.k.”
Following the accident NF accompanied one of the other people in the car to a hospital on the and to a walk-in clinic but did not seek attention for himself at either facility. He did not seek medical attention until 12 days after the accident when he went to his family doctor.
NF did not report his injuries to Aviva because the driver, KJ, refused to give him the vehicle insurance or vehicle information. He had to personally go to where the car was parked to take a picture of the licence plate. NF first informed The MVAC Fund of the accident on March 30, 2015 when he submitted an incomplete application for benefits.
The Schedule requires a person who intends to apply for benefits to notify the insurer of his or her intention to apply for benefits no later than the seventh day after the circumstances arose that give rise to the entitlement for the benefit or as soon as practicable after that. S. 34 of the Schedule provides that a person’s failure to comply with the time limit for notifying the insurer of his intention to apply for benefit or submission of a completed application for benefits does not disentitle the person to a benefit if the person has a reasonable explanation.
The Adjudicator found that on the basis of the evidence and on the balance of probabilities NF notified The MVAC Fund as soon “as practicable” by filing his application for benefits on March 30, 2015, and that upon receipt of the application, The MVAC Fund received the required notice of NF’s intention to apply for benefits. In the circumstances it was impossible for NF to notify The MVAC Fund within seven days. The Adjudicator determined it would take some time for an ordinary person to determine where to make a claim for accident benefits if they do not have access to the insurance information for the vehicles involved in the collision. Three months is not an unreasonable amount of time for notification to be given to The MVAC Fund in the circumstances of this case.
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. NF 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 NF within 10 business days after receiving the application. In this case, NF “skipped” the step of notifying the insurer and waiting for an application form and instead on March 30, 2015 he submitted an incomplete application to The MVAC Fund which he also relies upon as his notice of intention to claim a benefit.
Because The MVAC Fund did not provide the application forms to NF as is contemplated by s. 32(2) of the Schedule a finding of whether the application was made within the 30 does not decide the issue.
The Adjudicator found that NF complied with the requirements of the Schedule when he submitted his application to The MVAC Fund on March 30, 2015. Significantly, The MVAC Fund acknowledged receipt of the application and requested further documents from NF. The Schedule distinguishes between a late application and an incomplete application and the remedy for a delay in submitting a completed application is found in s. 32(6) and not s. 55(1) of the Schedule.
S. 32(6) of the Schedule provides that no benefit is payable before an applicant provides the missing information. S. 55(1) only bars a claim to the Tribunal is 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 was missing information.
On the basis of the analysis the Adjudicator found that NF is not barred from commencing a proceeding before the Tribunal.
Is the Application for Benefits Complete?
Aviva argues that NF’s application for benefits must be denied because the application to The MVAC Fund is not complete. Aviva considers the application to be incomplete because NF did not provide The MVAC Fund with the Police Report and because NF did not provide a reasonable explanation as to why the Police Report was not available. Aviva argues that the Police Report was required to confirm NF’s involvement in the accident.
Section 10 of the Application for Benefits Form (OCF-1) provides that for applications to The MVAC Fund the application will not be considered complete until NF provides the three additional forms. The Schedule prescribes the procedures for claiming benefits. If an application is incomplete the insurer is required to give notice to NF advising NF of the missing information that is required or that NF’s signature is missing as appropriate.
The MVAC Fund gave notice to NF that the application was incomplete by its letter dated April 9, 2015 requesting the three additional forms required for an application to the MVAC Fund and that the application be signed. NF provided all of the missing information to The MVAC Fund except for the Police Report.
NF’s position is that he does not know if a Police Report exists. NF relies on the decision of the FSCO in Motor Vehicle Accident Claims Fund v. Berta Avdeeva to support his position that his application was complete despite the fact that a copy of the accident report was not provided. The Director’s delegate, Lawrence Blackman, 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. NF does not argue that no report was prepared but rather he was unable to obtain a copy of one.
The Adjudicator agreed with the decision in Avdeeva that a Police Report is not mandatory if it does not exist and noted that 36(7) of the Schedule is the key to determining what information is mandatory for an application to be complete. This subsection provides that an insurer may not give notice of an incomplete application unless the insurer, after a reasonable review of the application, is unable to determine without the missing information, whether a benefit is payable.
The Adjudicator has not been provided with a copy of NF’s (OCF- 1), and for that reason is unable to conclude that The MVAC Fund would have been unable to determine if an accident occurred from the information provided on the form. The statement NF gave to the MVAC Fund on June 30, 2015 did however provide the missing information that would allow the MVAC Fund to conclude that an accident occurred.
The Adjudicator is satisfied that as of June 30, 2015 The MVAC Fund would after a reasonable review of the information in its possession would be able to determine if a benefit was payable.
Are Benefits Payable?
The Explanation of Benefit forms Aviva issued for all of the benefits claimed rely upon NF’s failure to provide a copy of the accident report exclusively as the reason for not assessing NF’s claim for benefits. Having already determined that The MVAC Fund was notified as soon as practicable after the collision, the Adjudicator found that s.32 (10) does not apply in this case because NF has not failed without a reasonable explanation to notify the insurer as required by s. 32(1).
Did Aviva Comply with s. 38(8) of the Schedule?
Section 38(8) of the Schedule requires an insurer to respond to a treatment plan treatment plan within 10 business days and prescribes the notice and information that must be provided to an applicant when a claim for goods, services, assessments or examinations in a treatment plan is denied. 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 consequences set out in s. 38(11) of the Schedule.
NF argues that all of the treatment and assessment plans in issue are deemed payable by the Schedule for the reason that The MVAC Fund did not respond to the plans within 10 days as required by the Schedule. NF argues that the notices were deficient because Aviva never advised him that it believed the Guideline applied to him and because Aviva did not provide medical reasons for denying the treatments plans in issue.
Aviva submits that the notices were all delivered within 10 days.
The Adjudicator reviewed the notices provided by Aviva for each treatment plan in issue and found that the notices do not comply with the requirement in s. 38(8) for two reasons:
- The notices do not advise NF 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 for denying the benefit
On this basis Aviva is prohibited from taking the position that the insured person suffered an impairment to which the Minor Injury Guideline applies.