Tribunal File Number: 17-000121/AABS
Case Name: 17-000121 v The Personal 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:
T.H.
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
For the Applicant: Maria Makarova, Paralegal
For the Respondent: Conor Wyche, Counsel
HEARD: Written Hearing: September 6, 2017
1The applicant, T.H., was involved in an accident on December 12, 2013, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 201011 (the "Schedule"). The applicant's claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") to resolve the matter.
Motion:
2The applicant brought a motion in this matter on August 28, 2017.
3The applicant is seeking to preclude the respondent from relying on s.38(2) of the Schedule as a defence, which the respondent raised within its response submissions for this hearing, dated August 11, 2017.
4In its response submissions for this hearing, the respondent relied on s. 38(2), submitting that the applicant incurred the expense of the assessment in dispute prior to submitting the OCF-18 to the respondent for approval, and as such the expense for the assessment is not payable.
5The applicant submits that the respondent should not be permitted to rely on this defence at this stage in the proceedings for a number of reasons, which I will summarize:
The respondent accepted the OCF-18 and scheduled IE's to assess the reasonableness and necessity of the treatment and assessment plan.
S. 38 of the Schedule requires "all other reasons" to be provided in the denial.
The denial of the OCF-18 was only based on the MIG.
This issue was not raised by the respondent within the FSCO proceedings prior to the file's transfer to the Tribunal.
The respondent failed to raise this issue within its response to the applicant's application to the Tribunal, or during the case conference.
The respondent failed to notify the applicant that the expense was not payable due to a violation of s.38(2) prior to the written submissions being filed.
6The respondent submitted a reply to the applicant's motion. The respondent submits that the applicant did not include the issue in dispute within this hearing in their initial application to the Tribunal, and rather it was added verbally, on consent, at the case conference at the applicant's request.
7The respondent further submits that because the applicant did not include this issue within their initial application to the Tribunal, the respondent was not required to file a response to it, nor was a response from the respondent requested on this issue. It would be unfair to insist the respondent raise the s.38(2) defence within their response when the assessment in dispute was not included within the application to the Tribunal.
8The respondent submits that raising this defence as this stage caused no prejudice to the applicant, as the evidence that the OCF-18 was submitted after the assessment was incurred is undisputable and any evidence to the contrary could have been submitted to the Tribunal.
9The applicant also submits there is no provision under s.38 or otherwise which precludes an insurer from raising a reason for a denial at a later time, even if it was not raised within the notice of denial.
10Finally, the respondent submits that s. 38(2), essentially, automatically disentitles the applicant from payment for an expense of an assessment incurred prior to the submission of the OCF-18, and that the Tribunal has no discretion to waive this requirement.
11I am in agreement with the respondent on this matter.
12A defence may be brought up by the respondent at any time within the proceeding, as long as there is no prejudice caused to the applicant, and the applicant has an opportunity to respond to this defence.
13This was the case here. There was no prejudice caused to the applicant by the respondent raising this defence within their submissions, as the applicant had ample opportunity to respond to this defence within their reply submissions.
14With respect to the respondent's submission that this issue was not included in the initial application, but rather was added verbally, on consent, at the case conference, I am not privy to the details of the events that took place at the case conference beyond the case conference order. However, it appears as though the applicant's request to add this issue in dispute, was made through correspondence to the Tribunal after the initial application was submitted and prior to the case conference. It also appears that the respondent consented to the addition of this issue.
15Regardless of the proceedings which occurred at FSCO, prior to this matter being transferred to the Tribunal, I can only consider the circumstances which occurred within the proceedings at the Tribunal, which I do not find amount to any prejudice to the applicant.
16In addition to this, the failure to include a reason within the denial notice, again, does not preclude the respondent from raising it as a defence at a later time. Whether this defence is accepted as sufficient enough to make a claimed benefit not payable, is a matter for the Tribunal to decide.
17As such, the respondent is not precluded from relying on the s. 38(2) defence and the applicant's motion is dismissed.
Issues in Dispute:
18The issues to be decided at this hearing are:
a. Is the applicant entitled to the cost of an in-home assessment in the amount of $1,456.04 recommended by Excel Medical in a treatment plan (OCF-18) dated February 11, 2014, submitted to the respondent on March 15, 2014 and denied initially by the respondent on March 27, 2014?
b. Is the applicant entitled to interest on any overdue payment of benefits?
Result:
19As a result of the applicant's non-compliance with s. 38(2) of the Schedule, he is not entitled to the cost of examination in dispute.
20As the applicant is not entitled to the cost of examination for the In-Home Assessment & Form-1, the applicant is not entitled to interest.
ANALYSIS:
Cost of Examination:
21The applicant is seeking payment for the cost of examination of an In-Home Assessment & Form-1 dated February 11, 2014, completed by Monica Ibrahim, in the amount of $1,456.04.
22The OCF-18 for the In-Home Assessment & Form-1 was submitted to the respondent on March 15, 2014 via HCAI. The respondent denied it on March 27, 2014.
23The respondent brought forth a s.38 (2) defence with respect to the assessment in dispute. The respondent claims that the assessment in dispute is not payable, as the applicant incurred this expense prior to submitting the corresponding OCF-18 to the respondent.
24Section 38(2) of the Schedule states that an insurer is not liable to pay for an assessment of examination which has been incurred prior to the submission of a treatment and assessment plan (OCF-18), by the insured.
25There are four exceptions to this rule laid out within section 38(2), however, none of these are applicable in this case
26Unless one of the four exceptions apply, section 38(2) requires the applicant to submit an OCF-18 before incurring the expense of the assessment. This is a requirement prescribed by the law, and as such cannot be waived by me.
27It is clear from the evidence before me that the date of the completed assessment report is February 11, 2014, while the submission date of the OCF-18 is March 15, 2014.
28There is no evidence before me nor submissions by the applicant, to the contrary, regarding the timeline in which the assessment was incurred and the OCF-18 submitted.
29The applicant submits that the respondent should be precluded from relying on this defence, as they did not indicate that non-compliance with s.38(2) was a reason for the denial, within the notice letter.
30Unfortunately, regardless of whether the notice letter may have failed to include this reason as a basis for the denial or not, this does not change the facts which trigger s. 38(2) in this case.
31Section 38(2) applies automatically once it is triggered by the failure to submit an OCF-18 prior to incurring the expense.
32Due to the applicant's non-compliance with s. 38(2) of the Schedule, the In-Home Assessment & Form-1 in dispute is not payable.
33I emphasize that the applicant is not entitled to payment for the expenses of the cost of examination in dispute solely due to the non-compliance with s. 38(2) of the Schedule, and no finding has been made on the reasonableness and necessity of the cost of examination.
Costs:
34There was no issue regarding costs listed on the case conference order for this hearing.
35Despite the respondent's submission that the applicant was claiming costs, no such request was made within the applicant's submissions
36The respondent advised, within its submissions, that it was not seeking costs in this matter.
37Therefore, no costs will be awarded, in this case.
Released: March 29, 2018
Meray Daoud, Adjudicator