D. M. v. RBC Insurance, 2018 CanLII 115667

Licence Appeal Tribunal

Date: 2018-10-10

Tribunal File Number: 17-006781/AABS

Case Name: 17-006781 v RBC 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:

D. M.

Applicant

and

RBC Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Elvis Viskovic, Counsel

For the Respondent: Thomas Hughes, Counsel

HEARD: In Writing on April 9, 2018

OVERVIEW

1The applicant was injured in an automobile accident on August 24, 2014 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain costs of examinations and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Is the applicant entitled to payments for the costs of examinations recommended by Advanced Healthcare Management as follows;

a. $1,695.00 for an activities of daily living assessment submitted in a treatment plan dated December 9, 2014; and

b. $2,486.00 for an orthopaedic assessment submitted in a treatment plan dated December 9, 2014?

2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the activities of daily living assessment.

4The applicant is entitled to payment for the costs of the orthopaedic assessment plus interest pursuant to section 51 of the Schedule.

BACKGROUND

5The applicant was involved in an accident on August 24, 2014 and applied for and received accident benefits from the respondent. The applicant engaged in treatment within the Minor Injury Guideline (MIG), which the respondent funded.

6In December 2014, the applicant applied for funding for several treatment and assessment plans, including the disputed activities of daily living assessment and orthopaedic assessment. The respondent removed the applicant from the MIG around this time, approved some of these plans, but denied those in dispute. The respondent argues that the applicant is statute-barred from disputing these denials since they were issued more than two years ago. However, the applicant claims to have never received denials for the disputed assessments.

IS THE APPLICANT STATUTE-BARRED FROM ADJUDICATING THE DENIALS

7The respondent argues that the application dated October 10, 2017 is more than two years from the denials and, pursuant to section 56 of the Schedule, cannot now be disputed.

8As mentioned above, the applicant claims to have never received the denials. Further, the applicant submits that in the event the denials are deemed to be received, the denials are not clear and unequivocal and that the two year limitation period should not apply as a result of the ambiguity.

Receipt of denial letters

9With respect to both disputed plans, the applicant claims to have never received denial letters from the respondent. The respondent submits that correspondence was sent to the applicant and the medical facility on December 17, 2014, which denied funding for the assessments and requested the applicant attend a section 44 assessment. While the respondent did not state the manner in which the correspondence was delivered, its adjuster’s log notes indicate that it was mailed.

10Considering the submissions and evidence, I accept the respondent’s position that the notices were delivered by regular mail. Pursuant to s. 64(18) of the Schedule, the letters dated December 17, 2014 are deemed received on the fifth business day following the day they were mailed.

The activities of daily living assessment

11Upon review of the evidence and submissions, I find the applicant is barred from adjudicating the activities of daily living assessment because it was disputed more than two years from the date of the denial.

12The respondent addressed entitlement to the activities of daily living assessment in three separate letters dated December 17, 2014, April 10, 2015, and June 4, 2015. The respondent’s denial dated December 17, 2014 is not unequivocal because it states the respondent does not agree to fund the treatment plan “at this time”. The respondent’s denial dated April 10, 2015 is not clear because it only provides HCAI numbers to reference the disputed plans and provides no other way for the applicant to determine what treatment plans are being denied.

13However, the respondent’s letter dated June 4, 2015 clearly and unequivocally denies funding for the activities of daily living assessment. I find this letter starts the two-year limitation period set out in section 56 of the Schedule. There is no reference to the orthopaedic assessment in the June 4, 2015 letter.

14Section 7 of the Licence Appeal Tribunal (LAT) Act allows me to extend the deadline for filing of an appeal. Based on the submissions and evidence before me, I choose not to exercise this discretion. The applicant has not shown any intention to dispute the denial prior to the expiration of the limitation period and only relies on a technical exception to support entitlement. There is minimal prejudice to the applicant for subjecting this issue to the limitation period as the applicant did not engage in any attendant care services for which the assessment was commissioned to quantify. The length of delay in disputing entitlement is significant in that the appeal was filed several months after the limitation period expired. Lastly and similar to my finding on the prejudice to the applicant, the merit of the appeal for the costs of the activities of daily living assessment holds little weight as the applicant did not engage any attendant care services as a result of any recommendations in the assessment.

The orthopaedic assessment

15Upon review of the evidence and submissions, I find the respondent has not provided a clear and unequivocal denial of the orthopaedic assessment. As previously noted, the respondent’s denial dated December 17, 2014 is not unequivocal because it states the respondent does not agree to fund the treatment plan “at this time”. The April 10, 2015 denial is not clear as it identifies the treatment and assessment plans only by HCAI number, making it too difficult for the applicant to determine what treatment plan(s) are in dispute.

16The June 4, 2015 letter, which clearly denied funding for the activities of daily living assessment, did not address the disputed orthopaedic assessment.

17The applicant submits, and the evidence supports, the applicant incurred the cost of the disputed orthopaedic assessment on March 30, 2015. The assessment report and invoice were sent to the respondent on June 16, 2015.

18The applicant in entitled to the costs of the orthopaedic assessment by operation of section 38(11)2. The applicant incurred the costs after the 10th business day after the plan was proposed and prior to the receipt of a clear and unequivocal denial.

IS THE APPLICANT COMPLIANT WITH SECTION 44?

19The respondent submits the applicant is not compliant with section 44 for failure to attend an orthopaedic assessment. As a result of the non-compliance, the respondent holds the applicant is barred from adjudicating entitlement to the orthopaedic assessment pursuant to section 55 of the Schedule.

20The applicant disagrees and submits that section 44 was complied with when the applicant attended a section 44 orthopaedic assessment on December 21, 2015.

21I have reviewed the evidence and submissions and find the applicant is compliant with section 44 because the respondent’s request for an assessment was made more than reasonably necessary. Pursuant to section 44(1), the respondent is not permitted to subject the applicant to an examination more often than reasonably necessary. Following the submission of the treatment plan related to the disputed assessment, which occurred on December 9, 2015, the applicant attended an in-person section 44 orthopaedic assessment on December 21, 2015. The respondent had the opportunity to assess the applicant from an orthopaedic perspective and failed to have the assessor address entitlement to the disputed orthopaedic assessment. It is unreasonable to subject the applicant to another in-person orthopaedic assessment so soon after the first assessment simply because the respondent failed to address the issue during the previous assessment.

CONCLUSION

22The applicant is statute-barred from adjudicating entitlement to payment for the costs of the activities of daily living assessment.

23The applicant is entitled to payment for the costs of the orthopaedic assessment plus interest pursuant to section 51 of the Schedule.