Tribunal File Number: 16-001283/AABS
Case Name: 16-001283 v Unifund Assurance Company
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. T.
Applicant
And
Unifund Assurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the Applicant: Humberto Geovo
Counsel for the Respondent: Thomas Hughes
HEARD: Written Hearing: November 28, 2016
Overview
1On January 9, 2015 the applicant was injured in a motor vehicle accident. He applied for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Unifund Assurance Company (“Unifund”) denied payment for an orthopaedic assessment. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for payment of this benefit.
Issues in Dispute:
2The following issues are in dispute before the Tribunal:
- Is the applicant entitled to the cost of an assessment conducted by Frederic Langer, submitted on December 9, 2015 for an orthopaedic assessment in the amount of $1,994.72
- Is the applicant entitled to interest on any overdue payment of benefits?
- Is the applicant entitled to costs?
Result:
3As a result of subsections 38(8) and (11) of the Schedule, the applicant is entitled to payment for the orthopaedic assessment. The applicant is also entitled to interest on the overdue payment in accordance with the Schedule. The applicant is not entitled to costs.
Facts
4Following the motor vehicle accident on January 9, 2015, the applicant met with Dr. Frederic Langer, a physician with Healthway Medical Management. On December 9, 2015, the applicant submitted a Treatment and Assessment Plan (OCF-18) for the cost of an examination for an orthopaedic assessment from Dr. Langer for $1,994.72.
5Unifund denied the Treatment and Assessment Plan on December 22, 2015. In the Explanation of Benefits, Unifund provided the following reasons, all of which are located under heading “Additional Comments”:
Unifund Assurance Co. does not provide payment for assessments and services that are funded through OHIP pursuant to section 47(2) of the Statutory Accident Benefits Schedule. Should [the applicant] require an Orthopaedic Assessment he should make an appointment with his family physician. Should the family physician feel that an Orthopaedic Assessment is necessary based on [the applicant’s] diagnoses and injury complaints the family physician will refer him an Orthopaedic Assessment funded through OHIP. You [sic] request for an Orthopaedic Assessment in the amount of $1,994.72 is not approved or payable.
Procedural Issues:
1. What is the scope of an issue in the hearing?
6Unifund submits that the applicant is not entitled to payment for the December 9, 2015 Treatment and Assessment Plan because the applicant falls within the Minor Injury Guideline. This means that payment for the applicant’s impairment(s) is capped at $3,500. To be clear, the Minor Injury Guideline is not meant to suggest that the applicant has suffered insignificant pain. It is a payment classification only.
7The procedural difficulty is that the applicant did not believe that the Minor Injury Guideline was going to be an issue in this hearing. The applicant did not address this issue in his initial written submissions. Unifund discussed it at length in its response submissions. In Reply, the applicant disagreed that the Minor Injury Guideline is an issue before the Tribunal. He nevertheless provided brief submissions on the issue.
8The applicability of the Minor Injury Guideline is immaterial in this hearing. For reasons that will be explained in the Substantive Issues section, below, the decision turns on whether Unifund provided medical reasons on December 22, 2015, for denying the applicant’s treatment.
2. The applicant’s compliance with the LAT Rules on expert evidence
9Unifund submits that the applicant did not comply with Rules 10.2 and 10.3 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (LAT Rules). Unifund asks as remedy that the Tribunal rule the non-complying expert evidence to be inadmissible.
10The expert evidence in this hearing is immaterial because s. 38(11) applies. As will be explained in the Substantive Issues section, below, payment of the December 9, 2015 Treatment and Assessment Plan is automatic.
3. Can the applicant rely on Unifund’s Explanation of Benefits document?
11The applicant relies on Unifund’s Explanation of Benefits to submit that payment of the Treatment and Assessment Plan is owing under s. 38(8) of the Schedule. Unifund submits that the applicant should not be able to rely on the Explanation of Benefits document because it was not included in the applicant’s case conference brief.
12Unifund’s objection is belied by paragraph 6 of the Tribunal’s Order authorizing this hearing:
ALL of the documents and evidence that the parties intend to rely on at the hearing must be submitted. Materials submitted previously with the application, response or case conference summaries will NOT form part of the hearing record.
[Emphasis in original].
13As is standard for almost all automobile accident benefits hearings before the Tribunal, the parties must submit afresh all documents relied upon in the hearing. The applicant properly availed himself of this opportunity. The Explanation of Benefits is properly in evidence and the applicant is entitled to rely upon it.
Substantive Issues
1. Is the applicant entitled to payment for the December 9, 2015 Treatment and Assessment Plan?
14The applicant is entitled to payment for the December 9, 2015 Treatment and Assessment Plan. Under s. 38(8) of the Schedule, Unifund was required to provide medical reasons for why it believed the cost of the orthopaedic assessment was not reasonable and necessary. The Schedule requires the medical reasons to be provided within 10 business days. The Explanation of Benefits provided by Unifund on December 22, 2015 fails to set out medical reasons. Again, the explanatory part of the document states:
Unifund Assurance Co. does not provide payment for assessments and services that are funded through OHIP pursuant to section 47(2) of the Statutory Accident Benefits Schedule. Should [the applicant] require an Orthopaedic Assessment he should make an appointment with his family physician. Should the family physician feel that an Orthopaedic Assessment is necessary based on [the applicant’s] diagnoses and injury complaints the family physician will refer him an Orthopaedic Assessment funded through OHIP. You [sic] request for an Orthopaedic Assessment in the amount of $1,994.72 is not approved or payable.
15I fail to see a medical reason for considering the assessment to be reasonable or necessary. I see only considerations relating to OHIP coverage.
16Under s. 38(11) of the Schedule, Unifund’s failure to provide a medical reason requires it to pay for the goods and services described in the Treatment and Assessment Plan that could have been provided between Wednesday December 23, 2015 and the date that Unifund properly provided a medical reason for denying the orthopedic assessment. It is unclear when the latter date is. There is no evidence that Unifund provided in a formal notice a medical reason for denying payment of the orthopaedic assessment. Even Unifund’s written submissions do not shed light on this issue. Indeed, after reading Unifund’s written submissions, it is not clear that the applicant has received informal notice of a medical reason for denying his assessment. The vast majority of Unifund’s submissions relate to the applicability of the Minor Injury Guideline. This is not a valid medical reason: s. 38(11) of the Schedule prohibits Unifund from relying on the applicability of the Minor Injury Guideline as a reason for denying payment.
17Unifund did not comply with s. 38(9) of the Schedule, which required it to advise the applicant that it was relying on the application of the Minor Injury Guideline in the Explanation of Benefits.
18Unifund submits that the Explanation of Benefits complies with s. 38(8) of the Schedule. In support of this position, Unifund relies upon a decision from the Financial Services Commission of Ontario (FSCO) Gui Fang Gao v. State Farm Mutual Automobile Insurance Company, FSCO A13-002281. Decisions from FSCO are not binding upon the Tribunal, though they can have persuasive value if there is similar analysis. Gao is not persuasive. In that case, the insurance company advised the applicant that it was relying on the application of the Minor Injury Guideline to deny payment. This was a significant factual element for the Aribitrator in making his decision. That factual element is absent in this case, and as a result I do not find Gao persuasive.
19Unifund alternatively submits that even if it breached the procedure required under s. 38(8), the applicant must still prove that he is outside of the Minor Injury Guideline. Section 38(11) of the Schedule is a complete response to this submission.
2. Is payment required in light of OHIP?
20According to Unifund, the cost of the examination for the orthopaedic assessment is not payable because OHIP could have funded the same examination. Unifund’s submission rests on s. 47(2) of the Schedule, which states:
Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
21Unifund’s submissions is, essentially, that OHIP qualifies as “any other plan” under s. 47(2), Unifund’s submission only makes sense if s. 47(2) exempts payment for types of benefits that are reasonably available under OHIP. For example, payment for an examination for an orthopaedic assessment, or the assessment itself, would not be required if those services were reasonably available through OHIP. Unifund notes that the applicant has not provided evidence of whether OHIP will cover an orthopaedic assessment, or that he has even applied to OHIP for one.
22Unifund’s interpretation of s. 47(2) is too broad. Section 47(2) exempts an insurer from payment for the “portion of an expense for which payment is reasonably available” from OHIP. The relevant question to ask is, will OHIP pay for a portion of the specific examination for an orthopaedic assessment requested by the applicant in the Treatment and Assessment Plan? This is not the same as asking whether OHIP will pay for an examination for an orthopaedic assessment generally. If s. 47(2) is applicable, Unifund is exempted from paying only the portion that OHIP will cover of the specific examination for an orthopaedic assessment that the applicant requested in the Treatment and Assessment Plan dated December 9, 2015.
23There is no evidence that OHIP will pay for any portion of the specific orthopaedic assessment requested by the applicant on December 9, 2015.
24People involved in motor vehicle accidents need treatment in an expeditious manner, especially in the early time period following their accident. It is difficult to imagine that in drafting s. 47(2) the Legislature desired that insured persons should be required to apply to OHIP for coverage, await a response, receive no or partial payment for an examination for an orthopaedic assessment, and then apply to their insurer for coverage. This is especially so for an insured person who Unifund submits belongs in the Minor Injury Guideline. The applicant is entitled to payment for the cost of the examination for the orthopaedic assessment.
3. Interest
25The applicant is entitled to interest the outstanding payment of the cost of his examination for an orthopaedic assessment in accordance with the Schedule.
4. Costs
26The applicant seeks payment of his legal expenses “as a result of the Insurer’s unreasonable denial of accident benefits”. An award of costs under Rule 19.1 of the LAT Rules is an exceptional remedy. It is not designed to routinely compensate the winning party for the costs of the legal action. Unifund’s denial of payment for the applicant’s orthopaedic assessment does not rise to the level of “unreasonable” contemplated in Rule 19.1 to invoke the exceptional use of the costs remedy.
Conclusion:
27The applicant is entitled to payment for the Treatment and Assessment Plan submitted on December 9, 2015 for an examination for an orthopaedic assessment performed by Dr. Frederic Langer in the amount of $1,994.72. If payment for any portion of this benefit is reasonably available from OHIP the applicant is required under s. 47(2) of the Schedule to reimburse Unifund for that amount.
28The applicant is also entitled to interest on the outstanding payment of the Treatment and Assessment Plan in accordance with the Schedule.
29The applicant is not entitled to costs.
Released: March 27, 2017
______________________________
Chris Sewrattan, Adjudicator