CS v. Wawanesa Mutual Insurance Company, 2018 CanLII 110944

Date: 2018-07-24

Tribunal File Number: 17-008727/AABS

Case Name: 17-008727 v Wawanesa Mutual Insurance 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:

CS

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

Paralegal For The Applicant: Joe Kositsky

Counsel For The Respondent: Kathleen O’Hara

HEARD in Writing: July 17, 2018

REASONS FOR DECISION

OVERVIEW

1CS was involved in an automobile accident on January 10, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when Wawanesa denied his claims.

ISSUES

2The issues to be decided by the Tribunal are:

(1) Is the applicant entitled to receive the cost of a medical examination in the amount of $2,039.14, submitted on a treatment plan dated October 25, 2017 and denied by the respondent on November 8, 2017?

(2) Is the applicant entitled to receive the cost of an assessment for chiropractic service for $989.67, submitted on a treatment plan dated January 8, 2016 and denied by the respondent on January 12, 2016?

(3) Is the applicant entitled to receive a medical benefit in the amount of $1,610.00 for the remaining amount of a $4,610.00 treatment plan submitted February 13, 2017 and denied by the respondent June 14, 2017?

(4) Is the applicant entitled to receive a medical benefit for the specific items included in a treatment plan of $37,420.11 submitted January 20, 2017 and approved but only partially paid by the respondent June 9, 2017, as follows:

(a) $1,000.00 Delivery charges (no breakdown provided)?

(b) $1,855.70 for an iPad?

(c) $4,785.00 for a sofa?

(d) $3,355.00 for love seat sofa?

(e) $9,550.00 for renovations in the bathroom?

(5) Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3CS withdrew this claim in Issues 1 by way of his submission.

4I have made the following decisions on each remaining issue:

i. Issue 2: appeal denied.

ii. Issue 3: appeal denied.

iii. Issue 4: CS is entitled to be paid for the items listed in issue 4a-d, subject to providing invoices for them. CS indicated that item 4e is withdrawn.

5There are no overdue payments and therefore no interest owing to CS.

REASONS

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.²

Issue 2: Chiropractic Assessment

7Wawanesa notes correctly that s.38(2) of the Schedule prescribes that an insurer is not liable to pay an expense in relation to any assessment or examination that was incurred before the claimant files the OCF-18.

8This claim is not payable because the evidence indicates that it was incurred on January 8, 2016, three days before CS submitted his OCF-18 to Wawanesa on January 11, 2016. Dr. Huang’s chiropractic assessment report is dated January 8, 2016 and indicates that he conducted the assessment that day.

9CS did not address Wawanesa’s procedural objection in his submissions, leaving the facts and Wawanesa’s argument uncontested.

10CS’s appeal on this issue is accordingly denied.

Issue 3: Medical Benefits

11The disputed OCF-18 proposes a series of nine, 90-minute nutritional counselling sessions, accompanied by three progress reports.

12The medical necessity is undisputed, the rates for the service and travel time are undisputed and Wawanesa approved $3,000.00 of a $4,610.00 plan.

13Wawanesa relies on its insurer examination (IE) report, by Dr. Irina Safir, dated March 29, 2017, which found the OCF-18 partially reasonable and necessary. Dr. Safir opined that, to meet CS’s acknowledged needs:

i. Nine 60-minute sessions would suffice, as opposed to the proposed nine 90-minute sessions.

ii. Two progress reports would be adequate, instead of the three progress reports proposed by CS’s OCF-18.

14Wawanesa also argues that it is not in the best interests of CS to pay for unnecessarily long sessions and a third report, when to do so would effectively deduct from the remaining amount of available benefits.

15CS does not address Wawanesa’s concerns in his submissions. He does not, in fact, discuss how and why nutritional counselling and progress reporting at the level proposed is reasonable or necessary. His submission in relation to Dr. Safir’s report does not address the merits of his OCF-18 or Dr. Safir’s conclusions on the proposed counselling sessions at all.

16My own review of the disputed OCF-18 does not provide me with any basis to find that the recommended frequency and duration of the counselling sessions is reasonable or necessary.

17On balance, I find Wawanesa’s concerns about the OCF-18 valid, and its partial denial defensible. I find that CS has not met the onus on him to show that the unapproved portions of his OCF-18 are reasonable and necessary.

Issue 4: Various Expenses

18Wawanesa indicates in its submissions that the entire OCF-18 within which the claimed items were recommended has been approved. It has promised to pay for the items once it receives proper invoices for them.

19CS expressly acknowledges that under the Schedule an expense must actually be incurred before it is payable.

20CS has suggested that I find that cost of the items listed in issue 4a-d be deemed incurred under s.3(8) of the Schedule.

21Section 3(8) of the Schedule states that if the Tribunal finds that “an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect to the expense, it may, for the purposes of determining an insured person's entitlement to the benefit, deem the expense to have been incurred."

22CS has offered no evidence or argument on how or why I should find that the expenses are “deemed incurred” under s.3(8). He offers no rationale for the implied assertion that Wawanesa has unreasonably withheld or delayed payment of these expenses.³

23CS offers no explanation at all for his unwillingness or inability to provide invoices for the items claimed.

24I find that issue 4 is effectively resolved. I find that Wawanesa’s request for invoices as a pre-condition for payment is reasonable in the absence of any evidence to the contrary.

25Wawanesa must pay the approved expenses upon receipt of invoices for them, as it has agreed to do.

CONCLUSION

26CS’s appeal is denied.

27CS is entitled to be paid for the items listed above in issue 4, but only if he provides the invoices for them requested by Wawanesa.

28There are no overdue benefit payments and therefore no interest is owing to CS.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3Implied because unreasonably withholding or delaying payment of benefits is the basis for deeming expenses to be incurred in s.3(8) of the Schedule.