LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: January 17, 2017

Tribunal File Number: 16-000634/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:

R. H. Applicant

and

TD Insurance Meloche Monnex Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Claudette Leslie

Written arguments/evidence provided by:

The Applicant: R.H.

Counsel for the Applicant: Arvin Gupta

The Respondent/Staff Counsel for the Respondent: O. Itse Ezomo

Written Hearing: October 24, 2016

Overview/Background:

1The Applicant was injured in an automobile accident on July 20, 2014. She submitted a Treatment and Assessment plan (OCF-18), dated November 3, 2015, to the respondent, outlining various medical and rehabilitation services allegedly for costs totalling, $3,589. 40.

2The respondent alleges that the applicant did not submit a valid, signed Treatment Plan in the amount of $3,589.40. The respondent also claims that the applicant’s impairments are minor and fall within the MIG treatment framework and that the applicant has already exhausted the medical benefit limits under the Minor Injury Guideline (MIG).

3The applicant claims that the respondent did not respond to the Treatment Plan within the required time and is therefore obligated to pay the costs claimed for services.

4I find that the applicant submitted a valid Treatment Plan to the respondent claiming costs of $369.47. I also find that the respondent did not respond to the applicant within the statutorily mandated time and, regardless of the nature of the applicant’s injury, the respondent is required to fund the submitted Treatment Plan. I also find that the respondent is prohibited from taking a position that the applicant’s impairment falls within the MIG treatment framework.

Issues in Dispute:

5The issues to be decided are as follows:

i. Is the Applicant entitled to a medical benefit in the amount of $3,589.40, less any amounts paid, recommended by Reddy’s Physio Rehab Inc. in a treatment plan dated November 3, 2015, and denied by the Respondent on November 25, 2015?

ii. Is the Applicant entitled to interest on any overdue payment of benefits?

Evidence/Analysis:

6The evidence submitted for this hearing shows that there are three, substantively different versions of the November 3, 2015 OCF-18: The OCF-18 submitted for Case Conference purposes by the applicant; the OCF-18 submitted for the hearing by the applicant; and the OCF-18 submitted for the hearing by the respondent.

7The respondent raises a number of issues regarding the plans. I will address each in turn.

Did the applicant submit a signed, valid OCF-18?

8Section 38 of the Schedule requires that a Treatment and Assessment plan must be signed by the insured person unless the insurer waives that requirement. The respondent submits that the applicant failed to provide a valid, signed copy of the Treatment and Assessment plan in dispute; and therefore in keeping with s.38, it is not liable to pay any incurred expenses outlined in the plan.

9The respondent sent a letter to the applicant, dated November 25, 2015, in which it responded to a Treatment Plan it received, dated November 3, 2015. In the letter, the insurer denies the claim and informs the applicant that respondent requires her to attend insurer examinations.

10The respondent’s letter does not refer to its allegations that the Treatment Plan is not signed. The signature issue is not raised as a concern, until allegedly at the August/September 2016 Case Conference.

11The respondent’s November 25, 2015 response, including its silence on the signature issue, persuades me that the respondent accepted the submitted Treatment Plan. The respondent’s silence on the signature issue, on which the applicant relied on, constitutes the respondent’s waiver of the section 38 requirements.

Did the applicant submit a Treatment Plan to the respondent claiming benefits of $3,589.40?

12The respondent argues that, to date, there has been no proof presented indicating that a signed OCF-18 claiming benefits of $3,589.40 was submitted.

13As I previously indicated, there are three versions of a November 3, 2015 Treatment Plan related to this hearing.

The OCF-18 submitted for Case Conference purposes:

14This version lists proposed goods and services and related costs as:

i. reassessment - $200.00;

ii. chiropractic, active, physical therapy as $2,236.00; and

iii. massage therapy as $1,153.40, totalling $3,589.40.

Both the health provider’s and the applicant’s signatures are missing from the document; the names of 5 health care service providers appear in part 11 of the document; and unlike the version later submitted by the Applicant for this hearing, health provider Dr. Levenston’s notes appear in word processed format as opposed to handwritten. It appears 20 sessions each of the physical, chiropractic and therapy treatment are recommended.

The OCF-18 submitted for the hearing by the Applicant:

15Similar to the above noted version, this document also proposes the goods and services as noted above; except the amount for chiropractic, active, physical therapy is noted as $111.80; and massage therapy as $57.67, totalling $369. 47. The number of treatments appears to have been manually changed in hand-written format to reflect 20. The initial number of treatments noted is made indecipherable. The health provider’s signature appears on page 2 of the form; the applicant’s signature appears on page 4; and Dr. Levenston’s notes appear in handwritten format throughout. Similar to the version noted above, 5 health care service providers are listed.

The OCF-18 submitted for the hearing by the Respondent:

16This document appears to be a word-processed transcription of the document submitted by the applicant, with noteworthy differences, including the appearance of the health provider’s handwritten notes in a word-processed format. Similar to the initial OCF-18 submitted for Case Conference purposes, the total costs claimed for goods and services is $3,589.40. However, unlike the above, the goods and services are reflected as total body assessment -$200.00; therapy, multiple body sites - $2,236.00; therapy, multiple body sites $1,153.40; only 2 health care services providers’ names appear in part 11 of the document; and neither the health provider’s nor the Applicant’s signature appear in the document.

17A variety of changes occurred in the OCF-18 of November 3, 2015. These include wording, format/style, number of service providers, cost amounts; and noticeably only the version the applicant submitted for the hearing includes the required signatures.

18I find that the only valid OCF-18 is the one submitted by the applicant for this hearing, claiming goods and services in the amount of $369.47.

Did the Respondent Comply with Section 38 of the Schedule?

19It is the respondent’s position that even if the Treatment Plan was valid, the applicant’s injuries fall within the Minor Injury Guideline (MIG). Further, the respondent takes the position that since the applicant has exhausted treatment funding up to the MIG limit, the applicant is not entitled to payment of the claimed benefit.

20The applicant argues that the insurer did not comply with section 38 of the Schedule by failing to respond to the treatment/assessment plan within 10 business days, as required by the Schedule. As such the respondent is prohibited from taking a position that her injuries fall within the MIG. While the insurance company’s response letter is dated November 25, 2015, according to the Applicant, it was sent by regular mail and was received December 2, 2015; which the Applicant deems to be the response date.

21Section 38 (8),(9), (11) of the Schedule states:

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

(9) If the insurer believes that the Minor Injury Guideline applies to the insured person's impairment, the notice under subsection (8) must so advise the insured person.

(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

22The Applicant argues that the Respondent clearly failed to comply with the above provisions, and as such the Respondent is prohibited from taking a position that her injuries fall within the Minor Injury Guideline (MIG). Furthermore, in keeping with section 38(11) provisions, the insurer must pay the costs of the goods and services contained in the plan, starting on the 11th business day after the insurer received the plan (November 18, 2015) and ending on the day the insurer gave the notice of denial (deemed to be December 1 or 2, 2015 due to mail service).

23I have already found that the respondent’s letter to the November 3, 2015 OCF-18 treatment and assessment plan is dated November 25, 2015. The response was sent by regular mail, and considering that generally 5 days are allowed for such delivery, the issue date is reasonably understood to be 5 business days later and/or as the applicant claims, December 2, 2015.

24In any case, the response date exceeds the 10 business-day requirement. Therefore, the respondent is in breach of section 38(8), (9) and the consequences of section 38(11) clearly applies in this case. The respondent provided no reasonable explanation for the delayed response.

25In this case, based on the relevant evidence provided and in keeping with section 38(11), 2 of the Schedule, the insurer is liable for payment of the costs of treatment incurred for the period covering November 18, 2015 up to and including December 1, 2015, the date the insurer is deemed to have given the mailed letter of denial.

26In addition to the requirement to pay for the goods and services, the Schedule also requires an insurer to give medical and other reasons for not paying; and if the insurer believes the MIG applies, it must say so. If the respondent fails to comply with these provisions, it is prohibited from taking the position that the applicant has an impairment to which the Minor Injury Guideline applies.

27In the November 25, 2015 letter, the insurer indicates, “We regret to inform you that we are unable to approve the proposed goods, services and/or assessments on the basis that we have previously determined that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline.” The letter then goes on to describe the Applicant’s injuries as indicated in the Treatment Plan as being of a minor nature.

28While I am not convinced that the above explanation constitutes medical reasons, at the very least, I find that the Respondent is prohibited from taking a position that the impairment for which the Applicant seeks treatment falls within the MIG framework, on the grounds that it breached the provisions of section 38(8), in its failure to respond to the treatment and assessment plan in the required timeframe.

Claim for costs:

29The Applicant seeks to have the insurer pay the cost, $100.00, for filing this application.

30The Tribunal’s Rule 19.1 states, “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatious, or in bad faith, that party may request to the Tribunal for costs.”

31The applicant presented no submissions or evidence that would warrant awarding costs in this case.

Conclusion/Findings:

32On a balance of probabilities, and based on the relevant evidence provided, the Applicant submitted a valid OCF-18 treatment and assessment plan, dated November 3, 2015, in the amount of $369.47.

33I find that the insurer failed to comply with the provisions of section 38(8) of the schedule, by failing to provide medical reasons as required, and by exceeding the 10 business-day requirement to respond to the Applicant’s OCF-18 treatment and assessment plan. In essence, the Respondent’s failure compromised the Applicant’s ability to seek early treatment in keeping with the spirit of the legislation/regulations. The Applicant is also entitled to interest accrued on any outstanding payment of benefits by the Respondent.

34I also find, in keeping with section 38(9) of the Schedule, the Respondent breached the provisions of section 38(8) of the schedule and as a result, the insurer is prohibited from taking a position that, for treatment purposes, the Applicant’s impairment falls within the Minor Injury Guideline framework.

35In keeping with Tribunal Rule 19.1, find no reasonable grounds for awarding costs claimed for the filing of this application.

The Tribunal orders that:

36The Respondent shall pay to the Applicant a medical benefit in the amount of $369.47, less any amounts already paid, for services recommended by Reddy’s Physio Rehab Inc. in a treatment plan dated November 3, 2015, and denied by the Respondent on November 25, 2015/December 1, 2015.

37The Respondent shall pay to the Applicant accrued interest on any overdue payment of the above benefit.

38The Respondent is prohibited from taking a position that the Applicant’s impairment as contemplated by the Schedule falls within the MIG treatment framework.

39The Applicant’s claim for costs is dismissed.