[24] It offends all sense of fairness and is not in keeping with the policy objective that accident victims promptly receive the benefits to which they are entitled under the Act to avoid injustice or hardship. If the legislature had intended such a significant automatic result, it would have certainly said so.
[31] “Special awards” continue to be based on the facts of the case, not simply the facts surrounding the particular issue in dispute but the conduct of the insurer throughout the entire adjustment of the claim. Therefore, a finding that the insurer’s actions were unreasonable is a finding of fact based on my review of the evidence.
[32] On these facts, for the following reasons, it is my finding that Aviva unreasonably delayed payments to the applicant – both treatments, prescriptions and non-earner benefits. The respondent was unable to explain why the treatment plans were not approved – other than through inadvertence or oversight.
[33] From my review of the documentation, I note a consistent pattern of lateness in responding to treatment plans and other requested benefits. A key concept in accident benefits is prompt payment of benefits. As just one example, section 38(8) of the Schedule, imposes multiple procedural requirements on an insurer after receiving a treatment plan: it must respond within 10 business days; state what benefits it will pay or not pay for; and, if it refuses to pay for any benefit, provide the medical and all other reasons why the insurer considers the treatment (or assessment) not to be reasonable or necessary. Further, as per Section 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment expenses until such time that it gives proper notice. It appears none of the four treatment plans were responded to within this timeline nor were there reasons for the denial of the requested benefits. Even more alarming, when the respondent filed its Response to the Tribunal in October 31, 2017 it indicated that the applicant’s related injuries can be treated under the Minor Injury Guideline, clearly in violation of s. 38(11) and the procedural requirements in the Schedule.
[34] In support of his claim for a non-earner benefit, the applicant sent an Application for Accident Benefits to the respondent on November 25, 2016. Shortly after, on December 2, 2016, a Disability Certificate (OCF-3) was completed by Dr. K. Patel, OT, that indicated that the applicant suffers a complete inability to carry on a normal life and “is unable to lift, carry, bend, twist, squat, stand for prolonged amount of time, use his lower extremities, kneel, work overhead, and walk on uneven surfaces.” In Part 6 of the Disability Certificate, Dr. Patel indicated that the applicant met the test for a non-earner benefit for a duration of more than 12 weeks since the applicant has a history of prostate cancer, hypertension and high cholesterol and these factors prolong time to recover. Normally, after a positive Disability Certificate is provided, as here, the insurer will provide to the applicant an Explanation of Benefits (OCF-9) indicating whether they qualified for a NEB. The respondent did not have any explanation why the NEB was not paid after submission of the OCF-3. This did not happen and applicant’s representative properly followed up on behalf of his elderly client. He left a message on May 25, 2017, wrote to the respondent on May 31, 2017, June 15, 2017 and July 20, 2017 requesting payment of NEB’s – all which apparently were unanswered. The NEB’s were not approved until approximately a year after the accident in November 2017 without any explanation whatsoever for the delay other than to say it was a “situation of inadvertence” and not a deliberate decision. Certainly, it is clear to me that the respondent did not give reasonable consideration to all the information, including the positive Disability Certificate, available to them as early as December 2016 in assessing this claim. This is an unreasonable withholding of benefits.
[35] A further aggravating factor which added further proof of inflexible and unyielding behaviour on the part of Aviva was that even after the expenses were approved in November 16, 2017, the applicant still had to wait over 2 months to have the treatment paid to the service providers. The explanation for this delay was that Aviva required appropriate confirmation from the treating clinics that treatment was, in fact, incurred. The information before me was that the respondent was provided with invoices from the service providers several months earlier on May 23, 2017, May 31, 2017 and October 23, 2017.[18] This additional delay in making these payments was especially egregious. I also do not accept the respondent’s explanation that they have already been penalized by paying interest and this is an adequate penalty in circumstances of this delay. The applicant is automatically entitled to interest pursuant to s. 51 of the Schedule and this is a separate issue.
[36] It is a well-accepted principle that an insurer has an ongoing duty to assess and reassess a claim as new information is available. In the adjustment process this means that an insurer must make its decisions on the best available evidence. Here critical new medical information was provided to the adjuster on: March 23, 2017, pictures of the applicant’s injuries were sent to the respondent; May 31, 2017, the applicant was referred for an MRI on his right shoulder; June 15, 2017, MRI results and notes from Dr. Rasaratnam were provided that reveal a complete tear of right supraspinatus; and November 2, 2017, the respondent was scheduled to undergo surgery on his right shoulder on November 30, 2017 at Markham Hospital (while at this time the respondent curiously attempted to schedule an insurer’s examination on November 13, 2017, mere days before the applicant’s surgery). All of this information, if reviewed in a timely manner, could have removed the applicant from the Minor Injury Guideline much earlier. Here, the applicant was only taken out of the Minor Injury Guideline on December 7, 2017. Notably, after the application to the Tribunal has already been filed and over a year after his accident. Yes, I agree, that it is well established that an insurer can be wrong in its assessment of a particular claim – but here the respondent appears to have ignored the claim entirely for some time. Therefore, it is my finding that Aviva acted in a manner that was imprudent, stubborn, inflexible, and unyielding with respect to the benefits claimed, and thus unreasonably delayed payments to [the applicant].
[37] I also note a near total disregard in responding to written and verbal correspondence directly from the applicant’s treating medical and legal professionals, in my view, added to Aviva’s unreasonable behavior. The insurer, through its employees, has a duty to the insured to a standard of care to take reasonable, careful and timely steps similar to that a reasonably prudent and careful claims adjuster would take. The applicant was Aviva’s customer. Here, the documentary evidence shows that as early as January 16, 2017, Dr. Patel wrote to the adjuster advising that the applicant has seen a respiratory specialist and was experiencing pain when breathing and should be taken out of the MIG. On January 25, 2017 an email was sent to the adjuster indicating that Dr. Patel tried to contact the adjuster on the telephone but the voicemail was full and that the applicant needed medical attention. The applicant’s counsel also called the adjuster several times and wrote letters in which no response was received.
[38] Finally, the fact that after the filing of the application to the Tribunal, the respondent consented to settle the accident benefits issues in the dispute, establishes that its initial decision to deny the benefits was incorrect.
[39] For all of the above reasons, I exercise my discretion to award the applicant a “special award.”
