Tribunal File Number: 16-001756/AABS
Case Name: 16-001756 v Aviva Insurance Company of Canada
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:
G. S. Applicant
and
Aviva Insurance Company of Canada Respondent
DECISION
ADJUDICATOR: D. Gregory Flude
APPEARANCES:
For the Applicant: Dev Misir, Counsel
For the Respondent: Mina Mikhail, Counsel
HEARD: Written Hearing: January 5, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in a motor vehicle accident on January 1, 2014. She is in a dispute with the respondent over her entitlement to a number of accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for a resolution of that dispute.
2The applicant seeks two categories of benefits: attendant care benefits and medical and rehabilitation benefits. The respondent has denied the attendant care benefits on the basis that the applicant did not apply for them in a timely manner. It has denied the medical and rehabilitation benefits because, in its view, they are not reasonable and necessary given the nature and scope of the applicant’s injuries.
ISSUES IN DISPUTE
3The issues in dispute between the parties identified in the case conference order are as follows:
a. Is the applicant entitled to receive a medical benefit in the amount of $2,765.00 for physiotherapy treatment, recommended by Mississauga Active Physiotherapy Services; denied by the respondent on August 12, 2015?
b. Is the applicant entitled to attendant care benefits in the amount of $1,283.43 per month for the period January 1, 2014 to July 24, 2015?
c. Is the applicant entitled to attendant care benefits in the amount of $457.26 per month for the period July 25, 2015 to January 1, 2016?
d. Is the applicant entitled to receive a cost of examination in the amount of $823.69 for an attendant care assessment, recommended by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated July 29, 2015, denied by the respondent on August 21, 2015?
e. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For reasons set out below, I find that the applicant is not entitled to any of the benefits in issue in this hearing.
ANALYSIS
5Both parties submitted written submissions with medical documentation. The applicant’s submissions contain a number of allegations of fact, including allegations about the intentions of an Occupational Therapist following an assessment, the reasons why one witness earned less income during a certain time period, and the kinds of activities the applicant enjoyed both before and after the accident. There were also submissions about receipts being sent to the respondent. None of these submissions were supported by evidence. I note that submissions are not evidence. I will not consider any factual assertions made in the submissions without supporting evidence.
6I will address the issues in the order in which they are set out in the Issues section above.
Physiotherapy Treatment
7The applicant seeks payment of an amount of $2,765.00 for physiotherapy treatment. The respondent has denied payment on the grounds that the physical injuries sustained by the applicant were minor in nature and, according to the respondent’s occupational medicine expert, Dr. Charanjit Sandhu, the applicant: “did not demonstrate any substantial impairment…as a result of the motor vehicle accident.”
8The starting point for the analysis is the treatment goals set out in the treatment and assessment plan. The difficulty I face is the absence of the treatment and assessment plan in issue. In the Application to the Tribunal and the Response, the treatment and assessment plan in issue is dated July 6, 2015 and was denied by the respondent, at the latest, on October 21, 2015 following Dr. Sandhu’s examination of the applicant.1 The treatment and assessment plan submitted in evidence in reply is dated November 11, 2016 and signed by Zia Barmanis as the healthcare practitioner.2 In the absence of the July 6, 2015 treatment and assessment plan, the applicant has not provided the evidence upon which I can assess her claim.
Attendant Care Benefits
9The applicant makes two claims for attendant care benefits: one in the amount of $1,283.43 per month for the period commencing January 1, 2014 to July 24, 2015 and the second in the amount of $457.26 per month from July 25, 2016 to January 1, 2016. The respondent asserts two defences. Its first defence is that the applicant has failed to provide evidence establishing entitlement to the benefit. The second ground advanced by the respondent is that the applicant did not apply for these benefits until January 28, 2016. In this defence, the respondent takes the position that the Schedule relieves it of the obligation to pay for attendant care benefits until an application is received in the proper form. Given that the applicant is seeking these benefits up to January 1, 2016, and the application was received after that date, the respondent asserts that it has no obligation to pay. I will deal with the second ground first.
10The starting point for the respondent’s analysis is s. 42(1) of the Schedule. That section mandates that claims for attendant care benefits must be in a form entitled “Assessment of Attendant Care Needs” as approved by the Superintendent of Financial Services.3 The form in question is often referred to as a Form 1. It is the respondent’s position that it first received the two Form 1 applications from the applicant on January 28, 2016.
11According to s. 42(5) of the Schedule, an insurer may, but is not required to, pay an expense incurred before receiving a properly completed Form 1.
12The respondent submits that the effect of ss. 42 (1) and (5) is that it has no obligation to pay for attendant care expenses that were incurred prior to January 28, 2016. Since the claim before me seeks recovery for attendant care expenses up to January 1, 2016, by virtue of s. 42(5), I cannot order the respondent to pay.
13The applicant does not dispute the fact that the applicable Forms 1 were not submitted until January 28, 2016. It takes the position that the respondent was aware that the applicant was getting an attendant care assessment on August 6, 2015 when the assessor, Janice Kim, submitted a treatment plan for payment for the assessment. She further submits that the respondent received receipts relating to attendant care in July 2015 and that the applicant’s need for attendant care was set out early in the claims process.4 The failure to submit the claims on Forms 1 were simply an oversight on the part of Ms Kim. I will refer to the applicant’s position as the constructive notice position.
14It is important to restate the fact that I have no evidence before me to support a number of the factual allegations set out in the applicant’s submissions. Thus, if a submission is not supported by accompanying documentation, I have no evidence of the truth of the submission. I have no supporting documentation that receipts for attendant care were submitted to the respondent, thereby putting the respondent on notice of a claim for attendant care benefits. I have the treatment plan associated with the Form 1 which I deal with below. I also have no evidence from the attendant care provider, the applicant’s mother, detailing why she incurred a loss of income in 2014 and 2015. The applicant submits that the loss was incurred as a result of reduced working hours to care for the applicant, but I cannot make such a finding on unsupported submissions. Finally, I have no evidence concerning why the Forms 1 were not submitted before January 28, 2016. The information concerning constructive notice is set out in the applicant’s submissions and does not constitute evidence. My attention was not drawn to any specific document that outlined Ms. Kim’s motivation for submitting or not submitting forms to the insurer in a timely manner.
15The applicant relies on the decision of the Supreme Court of Canada in Smith v. Co-Operators [2002] I.L.R. I-4071 (Smith) for the proposition that the Schedule is geared towards consumer protection. The applicant then argues that the consumer protection dimension requires the respondent to notify the applicant of her right to apply for attendant care benefits and set out the mechanism for doing so. I do not think Smith extends so far. In Smith the Supreme Court focused on the question of when a denial of benefits took effect for the purposes of calculating the limitation period. The Court ruled that, in the case of a denial of benefits, an insurer must set out the insured’s rights to dispute the denial in clear and approachable terms understandable by an ordinary person.
16In the current case, there is no denial since there is no application until January 28, 2016. The applicant does not allege that she was misled by the respondent or unaware of her rights. She retained a professional to carry out an assessment and was aware that she could make such a claim. Indeed, the grounds alleged are that the professional inadvertently failed to apply in a timely manner, not that the applicant was unaware of her right to apply. Smith is distinguishable.
17I accept the respondent’s submissions with regard to the impact of ss. 42(1) and (5) on the applicant’s right to payment. The section establishes a code for making attendant care benefit claims. Failure to follow the procedure set out therein has the consequence that the respondent is relieved from the obligation to pay for attendant care benefits prior to the date it receives a Form 1.
18In coming to the conclusion above, I do not intend to foreclose any consideration of a late filing. There may well be cases where the nature of the emergency and resulting impairment is such that complying with the provisions of s. 42 (1) is impractical or impossible. Each case must be determined on its own merits. In the current case, there are no special circumstances.
19In light of my finding on the application of s. 42, I do not need to address the other grounds advanced by the applicant.
20Related to but separate from the issue of attendant care benefits is the claim for payment of the assessment of attendant care needs carried out by Ms. Kim on July 25, 2015. The treatment and assessment plan was submitted to the respondent on August 6, 2015. The respondent makes two submissions with respect to this assessment. It first argues that it is not liable to pay for any treatment or assessment expenses that were incurred before the date the treatment and assessment plan was submitted to it. It also takes the position that it was not reasonable and necessary for the applicant to undergo this assessment given the nature of her injuries.
21The respondent relies on s. 38(2) of the Schedule. That section relieves an insurer of the obligation to pay for treatment or an assessment if the expense was incurred before the submission of an application. The facts in this case clearly establish that the assessment expense was incurred on July 25, 2015 but the treatment and assessment form was not submitted until August 6, 12 days later.
22The rationale behind the section is clear. An insurer is entitled to review treatments and assessments and determine if it will fund them. If it decides not to fund them, there is a dispute resolution scheme in place to determine if the requested service is reasonable and necessary. By incurring the expense before submitting it for approval to the respondent, the applicant has attempted to foreclose on the approval process. S. 38(2) does not permit her to do so.
23There may, of course, be emergencies where treatment is urgently needed and it would be seriously detrimental to wait for the approval process to run its course. This situation is addressed by the provisions of s. 38(3). The applicant does not assert that she comes within the exceptions set out in s. 38(3). Nor could she. The assessment in question was not conducted until 20 months following the accident, purported to make findings with respect to needs over the prior 20 months, and then reduced the amount of the attendant care needed from the date of the assessment forward. The reduction indicates not a developing emergency, but an ongoing recovery.
24I find that s. 38(2) acts as a complete bar to recovery for the attendant care assessment. In light of this finding, I do not need to consider if the assessment was reasonable and necessary.
ORDER
25Having considered the evidence and the submissions of the parties, I find that the applicant is not entitled to payment for any the benefits she seeks. In light of this finding, no interest is payable.
Released: May 8, 2017
___________________________
D. Gregory Flude, Vice-Chair
Footnotes
- Respondent’s Submissions Tab 4
- Reply by the Applicant, Tab 4
- The definition of Superintendent is set out in the Insurance Act
- Reply of the Applicant, paras. 1 to 7