Tribunal File Numbers: 17-001227/AABS & 17-001283/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:
J.M. & N.M
Applicants
and
RBC General Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for Applicants: Ryan Naimark
Counsel for Respondent: Paul Omeziri
HEARD: Written Hearing: July 19, 2017
OVERVIEW
- There are two applicants in this matter, J.M. and N.M. The applicants are the adult-aged children of M.M., who was seriously injured in a motor vehicle accident on November 23, 2011. The applicants applied for social worker assessments under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). RBC General Insurance Company (“RBC”) denied payment for the assessments. The applicants appeal to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for the payment of this benefit.
ISSUES IN DISPUTE
- The following issues are in dispute before the Tribunal:
a. Is RBC required to pay for the social worker assessments under s. 38(11) of the Schedule?
b. Are the applicants precluded under s. 55 of the Schedule from bringing their respective applications to the Tribunal?
c. Are the applicants precluded under ss. 32(1) and (8) of the Schedule from bringing their respective applications to the Tribunal?
d. Are the applicants precluded under s. 38(2) of the Schedule from bringing their respective applications to the Tribunal?
e. Are the applicants entitled to the cost of a social work assessment in the amount of $1,985.80 recommended by Scarborough Physiotherapy and Rehabilitation Centre in a Treatment Plan?
f. Are the applicants entitled to interest on any overdue payment of benefits?
g. Are the applicants entitled to a special award due to the respondent unreasonably withholding or delaying the payment of benefits pursuant to section 10 of R.R.O. 1990, Reg. 664?
RESULT
- The applicants’ respective claims for a social work assessment are dismissed. They are prohibited from applying to the Tribunal for dispute resolution because they each failed to attend their independent medical examinations.
FACTS
M.M. was injured in a motor vehicle accident on November 23, 2011. On March 20, 2012, Dr. Jon Mills referred M.M. to 20 psychotherapy sessions, 10 of which included family counselling. The referral was sent in a Treatment Plan to RBC for approval. In response, RBC commissioned an independent medical examination from another psychologist. On May 8, 2012 the independent medical examiner recommended approving 10 of the 20 psychotherapy sessions. These 10 sessions included family counselling
The applicants are M.M.’s two children. N.M. is 29-years old currently. J.M. is 26- years old. The accident to their mother occurred almost six-years ago. When family counselling was approved by RBC following the May 8, 2012 medical report, the applicants attempted to manage their psychological symptoms on their own.
Over time, however, the applicants’ respective psychosocial conditions worsened. They sought help from the Scarborough Physiotherapy and Rehabilitation Centre (“SPRC”) in January 2015.
On January 20, 2015, SPRC submitted two Treatment Plans for approval to RBC. Each Treatment Plan was for a social worker assessment in the amount of $1,985.80. The Treatment Plans were submitted through Health Claims for Automobile Insurance (“HCAI”). Significantly, SPRC retained the original Treatment Plan documents, which were signed by the applicants on January 9 and 11, 2015, respectively. SPRC submitted unsigned Treatment Plan documents through HCAI.
From this point onward there is an involved timeline of communications between the applicants and RBC:
On February 1, 2015 each applicant underwent separate social work assessments. RBC had not yet communicated with them about the Treatment Plans.
On February 6, 2015, RBC sent J.M. a letter advising that were in receipt of a Treatment Plan. The letter asked that J.M. contact RBC.
On February 10, 2015, RBC sent an Application for Accident Benefits to each applicant.
On March 24, 2015, both applicants submitted Applications for Accident Benefits in relation to their mother’s accident.
On May 8, 2015, RBC sent letters to the applicants advising that the Treatment Plans were denied. RBC explained that based on the information in its possession at the time, the Treatment Plans were not reasonable and necessary. RBC further explained that it had been over three years since the accident and the injuries sustained did not warrant an assessment. RBC requested that each applicant attend an independent medical examination to determine whether the Treatment Plans are reasonable and necessary.
- The applicants each failed to attend an independent medical examination. The applicants have taken the position that they do not need to attend an independent medical examination because the social work assessments should be automatically payable as a function of s. 38(8) of the Schedule. This provision, when read in context with s. 38(11), requires RBC to pay for the assessments if RBC did not approve or deny the Treatment Plans within 10 business days, and if the assessments were conducted in certain time period.
ANALYSIS
(1) Is RBC required to pay for the social worker assessments under s. 38(11) of the Schedule?
RBC is not required to pay for the social work assessments incurred by each of the applicants as a result of s. 38(11) of the Schedule. When read in context with s. 38(8), s. 38(11) requires an insurer to give notice to an insured party that it is approving or denying a Treatment Plan within 10 business days of receiving the Treatment Plan. If an insurer fails to give notice within 10 business days, it must pay for the any assessments included in the Treatment Plan that relate to the time period between two markers: first, the 11th business day after the day the insurer received the Treatment Plan; second, the day the insurer provided notice of its approval or denial of the Treatment Plan: s. 38(11).
The two social work assessments relate to a time period that is outside the scope of s. 38(11), and as a result s. 38(11) is not applicable to them. Subsections 38(8) and 38(11) work in tandem. The specified time period in s. 38(11) ensures that an insured party does not incur an expense before that expense is approved by their insurer. The 10-day limit in s. 38(8) is a corollary to this purpose. The 10- day limit requires an insurer to respond to a Treatment Plan quickly so that the insured person can quickly avail themselves of approved medical and rehabilitative benefits.
In this case, the applicants incurred the expense of their respective Treatment Plans before RBC could reasonably approve or deny the expense. The Treatment Plan for each social work assessment was submitted to RBC through HCAI on January 20, 2015. Presumably RBC received the Treatment Plans on the same day, making the first marker for the relevant time period 11 business days after January 20, 2015. That day is February 3, 2015.
The second marker is May 8, 2015, which is when RBC provided notice to the applicants that it was denying the Treatment Plans.
The social work assessments were conducted on February 1, 2015. This is 2 business days prior to the start of the relevant time period covered by s. 38(11). There is no indication that the social work assessments were carried on past this date. For example, I do not have a report from the assessments that are dated after February 1, 2015. As a result, I conclude that the social work assessments do not relate to the time period covered by s. 38(11).
(2) Are the applicants precluded under s. 55 of the Schedule from bringing their respective applications to the Tribunal?
The applicants are precluded under s. 55 of the Schedule from bringing their respective applications to the Tribunal. An insured party cannot apply to the Tribunal if they fail to attend an independent medical examination despite having been given proper notice: s. 55(1) of the Schedule. There is no dispute in this hearing that the applicants were given proper notice by RBC. Indeed, the applicants submit that they do not need to attend the examinations because the social worker assessments were automatically payable under s. 38(11) of the Schedule. As discussed above, s. 38(11) does not apply in this case. The applicants were required to attend the independent medical examinations before they could apply to the Tribunal for relief. They did not attend the independent medical examinations. They are precluded from bringing their application to the Tribunal.
Each of the applicants’ claims for a social worker assessment are dismissed as a result of s. 55(1) of the Schedule.
(3) The remaining issues in dispute
- Since the applicants claims are dismissed as a result of s. 55(1) of the Schedule, I do not need to consider the other issues.
CONCLUSION
- The applicants are precluded from bringing an application to the Tribunal because they failed to attend their independent medical evaluations. Each of the applicants’ claims for a social worker assessment are dismissed as a result of s. 55(1) of the Schedule.
Released: September 28, 2017
Chris Sewrattan
Adjudicator