Tribunal File Number: 17-001866/AABS
Case Name: 17-001866 v Aviva Insurance
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. W. J.
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Tracy Romanowski, Paralegal
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: In writing on August 29, 2017
OVERVIEW
1The applicant was injured in an automobile accident on September 23, 2014 and sought benefits from the respondent pursuant to O. Reg 34/10 Statutory Accident Benefits Schedule (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2The parties resolved the majority of the disputed claims prior to the hearing but were unable to resolve the following issues.
ISSUES:
3The issues in dispute in this hearing are:
Is the applicant entitled to an award under Regulation 6641 because the respondent unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons set out below, I find that:
The applicant is not entitled to an award under Regulation 664.
Interest is not payable as no payments went overdue.
BACKGROUND
5The applicant submitted receipts for medical marijuana to the respondent dated June and August 2016.
6On February 9, 2017, the respondent advised the applicant via email that it was willing to pay for medical marijuana for the applicant for one year, under the claim related to the 2014 accident. In its email, the respondent noted that the applicant had been involved in a previous accident in 2012 and advised the applicant that the claim received for medical marijuana was submitted with reference to the 2014 accident date but the claim number associated with the 2012 accident. The respondent requested the applicant submit the expense on a Treatment and Assessment Plan (OCF-18) and include the claim number to clarify which accident the expense/claim for medical marijuana was related to.
7The applicant disagreed with the respondent’s position that an OCF-18 was required for medical marijuana. The applicant advised the respondent of this by email on the same day, February 9, 2017.
8In response, the respondent provided the applicant with a letter dated February 15, 2017. The letter reiterated that the expense was submitted with reference to the 2014 accident date but the claim number associated with the applicant’s 2012 accident. The letter also stated the respondent’s position that the expense must be submitted on a treatment plan.
9The applicant resubmitted the medical marijuana expense to the respondent on March 27, 2017, by way of Expense Claim Form (OCF-6). This time, the applicant referenced the September 23, 2014 accident in the expense claim.
10On April 3, 2017, the respondent provided the applicant with an explanation of benefits in response to the March 27, 2017 claim. The explanation of benefits referenced the February 9, 2016 correspondence in which the respondent requested the applicant submit the expense on a treatment plan.
11The applicant faxed a letter to the respondent on April 5, 2017. The letter restated the applicant’s position to the respondent that a treatment plan was not required.
12The respondent replied to the applicant by letter dated April 13, 2017. The respondent requested, as an alternative to an OCF-18, the applicant provide a letter from the prescribing physician confirming that the medical marijuana is reasonable and necessary and as a result of the 2014 accident.
13The parties participated in a case conference on May 29, 2017. As a result of the case conference, the applicant agreed to provide a letter from their physician, Dr. Doorly, confirming the medical marijuana was reasonable and necessary and as a result of the 2014 accident.
14The respondent received the letter by Dr. Doorly on June 16, 2017. The respondent issued payment to the applicant under a letter dated June 21, 2017.
WHEN WAS THE MEDICAL MARIJUANA EXPENSE SUBMITTED?
15On March 27, 2017, the applicant resubmitted the expense on an OCF-6, with reference to the 2014 accident date and claim number. In their submissions, the parties agreed that March 27, 2017 is the date the expense was submitted to the respondent. As a result, I find that the claim for medical marijuana was submitted on March 27, 2017.
IS A TREATMENT PLAN REQUIRED FOR MEDICAL MARIJUANA?
16The applicant submits that a treatment plan is not required for a prescription drug expense. The applicant refers to s. 38(2)(c) of the Schedule which says that an insurer is not liable to pay for a medical benefit that was incurred before the insured person submits a treatment and assessment plan unless, among other things, it is for drugs prescribed by a regulated health professional. The applicant points out that there is no provision in s. 38 requiring an insured have a treatment plan completed for drugs prescribed by a regulated health professional. The applicant further submits that this position is stated directly on the standard treatment plan form. The respondent made no submissions refuting this argument from the applicant.
17I agree with the applicant’s interpretation of s. 38 that, when prescribed by a regulated health professional, medical marijuana falls under s. 38(2)(c) of the Schedule. I find that the medical marijuana was prescribed for the applicant by a regulated health professional and find that an OCF-18 is not required for the applicant’s medical marijuana prescription.
IS IT REASONABLE TO REQUEST A LETTER FROM THE PRESCRIBING DOCTOR?
18The applicant submits that the respondent’s request for a letter from the prescribing physician amounts to unreasonable delay. The applicant argues that requiring a letter confirming a prescription expense is an unnecessary burden. The applicant further argues that by prescribing a medication, the physician has in fact confirmed the prescription is reasonable and necessary.
19The respondent submits that the information it requested from the prescribing physician is reasonable in order to properly adjust the claim. It submits that an insurer ought to have an opportunity to satisfy itself that the expense is reasonable and necessary and as a result of the 2014 accident.
20I find that requesting a letter from the prescribing physician for this expense is reasonable. Other than the letter from Dr. Doorly dated June 13, 2017, I have no evidence before me that verifies that the respondent had confirmation that the medical marijuana is being prescribed as a result of the 2014 accident. It is reasonable for an insurer to request information to confirm a medication is prescribed as a result of the accident. It is possible that medical marijuana is being prescribed for a condition unrelated to the 2014 accident and the respondent has the right to confirm the expense is related to the accident.
UNREASONABLE DELAY OR ADJUSTING A CLAIM?
21The applicant submits that the respondent’s position that medical marijuana should be submitted on a treatment plan and the behaviour following the request created an unreasonable delay in the payment of the benefit.
22The respondent argues that it acted reasonably in requesting additional information relating to whether or not the prescription for medical marijuana was reasonable and necessary and related to the accident of September 23, 2014. The respondent submitted that it needed to confirm the prescription was reasonable and necessary as a result of the accident. It cited a number of decisions including Brazier and RBC2 , in which the FSCO Arbitrator upheld the principles that an insurer ought not to be held to a standard of perfection and that an incorrect interpretation of the legislation does not merit an award under Regulation 664. Lastly, the respondent submits that the fact that it issued payment within 5 days of receipt of Dr. Doorly’s letter demonstrates that it has acted reasonably in adjusting the claim.
23I am persuaded by the arguments and case law submitted by the respondent. I find that the respondent’s initial request that the claim be submitted on a treatment plan, although not correct, was not unreasonable to the extent enough to merit an award against the respondent.
24I find the respondent acted reasonably in exercising its right to confirm the prescription was prescribed as a result of the accident. It was unable to confirm which accident the prescription was related to and requested a letter from the prescribing physician for further clarification. Once the letter was received, the respondent rendered payment to the applicant within 5 days. I am unable to find that the respondent unreasonably withheld or delayed payments to the applicant. As a result of my findings, the applicant is not entitled to an award.
INTEREST
25The applicant claims entitlement to interest. The applicant submits that interest is mandatory for overdue payments and relied on two decisions rendered by the Financial Services Commission of Ontario to support the submission. In Edwards and Optimum3, the arbitrator found that payment of interest is mandatory and did not require that entitlement be established for interest to accrue. Virk and Liberty Mutual Insurance Company of Canada4 affirmed that interest is mandatory and flows from late payment of overdue benefits.
26I do not find the case law provided by the applicant compelling. The decisions provided are distinguishable because they relate to claims made where it is clear the benefit was being sought as a result of a specific accident. In the case before me, it was not clear which accident the claim was related to. I find that the respondent’s request for additional information to clarify whether the claim was related to the applicant’s 2012 accident or the 2014 accident was not unreasonable.
27The respondent argues that interest is not payable. It submits that there are no benefits in dispute for this hearing and the Tribunal can only award interest when a benefit is found to be payable.
28With respect to jurisdiction, I am not convinced that the Tribunal is barred from making a finding that interest is payable when, at the time of the hearing, the claimed benefit is not in dispute. Despite the above and for the following reasons, I find that no payments were overdue and that interest is not payable in the case before me.
29The applicant has not provided any legislative, common law, or other persuasive guidance on when the expense was payable and when interest would start to accrue.
30I am guided by sections 38 and 39 of the Schedule with respect to the timelines for payment. Section 38 states that the respondent is liable to pay for reasonable and necessary drugs prescribed by a regulated health professional as a result of the impairment sustained by the insured person. In this situation, the medical marijuana expense was submitted with reference to the 2012 accident and the respondent needed this to be clarified before remitting payment.
31Section 39 dictates that, in the event that an insurer agrees to pay an expense without the submission of an OCF-18, an insurer must remit payment for the expense within 30 days of receipt of the invoice or expense. In this situation, the respondent advised it did not require an OCF-18 but would require a letter from the prescribing physician confirming the prescription was as a result of the 2014 accident.
32I find that it took the respondent approximately 24 days to remit payment for the expense, which is reasonable under the circumstances. My calculation is as follows. The parties agreed that the expense was submitted on March 27, 2017. The expense was discussed between parties up until April 13, 2017, when the respondent conceded the position on the submission of a treatment plan and requested a letter from the prescribing physician. I calculate the time from March 27, 2017 up to an including April 13, 2017 as 18 days. The applicant’s refusal to provide information indicating the prescription is as a result of the accident spanned from April 13, 2017 to June 16, 2017, when the applicant provided the letter from Dr. Doorly. I do not count this time when calculating interest because the onus was on the applicant to obtain supporting documentation. This period of delay was attributed to the applicant. On June 16, 2017, the applicant provided the doctor’s letter to the respondent. Including the day it was remitted, the respondent sent payment to the applicant 6 days later on June 21, 2017.
CAN THE TRIBUNAL MAKE AN AWARD UNDER REGULATION 664 IF NO ISSUES ARE IN DISPUTE?
33One of the underlying issues before me is whether or not the Tribunal can order an award for the applicant under Regulation 664 if there are no issues in dispute. Having found that the respondent’s behaviour was not unreasonable, it is not necessary for me to address this issue.
CONCLUSION
34The respondent’s request for a letter from the prescribing physician was reasonable in order to determine if the claim was reasonable and necessary and as a result of the 2014 accident, which it is required to be under the Schedule.
35I find that the applicant did not provide sufficient and necessary information to the respondent when the expense claim was first provided to the respondent. Once in receipt of the relevant documentation, the respondent approved the expense without unreasonable delay. Considering this, the applicant is not entitled to an award under Regulation 664.
36Having found that there was no delay in rendering payment for the prescription expense, there is no interest owing.
37The application is dismissed.
Released: December 8, 2017
___________________________
Brian Norris, Adjudicator
Footnotes
- Insurance Act, R.S.O. 1990, C I.8
- Brazier v. RBC General Insurance Co., [2009] O.F.S.C.D. No. 58
- Edwards and Optimum, FSCO P16-00008, March 13, 2017
- Virk and Liberty Mutual, FSCO P04-00027, July 5, 2005