Tribunal File Number: 18-006663/AABS
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.J.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION ON PRELIMINARY ISSUES
PANEL: Samia Makhamra, Adjudicator
Appearances:
For the Appellant: G.J., self-represented
For the Respondent: Jennifer Walters, litigation specialist David E.W. Koots, counsel
Heard: by Teleconference: Hearing: June 3, 2019
OVERVIEW
1The applicant was injured in an automobile accident on January 1, 2010. Following the accident, he applied to the respondent for Statutory Accident Benefits. As he was denied certain benefits, he applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2In his application, the applicant is appealing the denial of various benefits and expenses. The respondent challenges the applicant’s right to proceed with several of these before the Tribunal because he did not submit treatment plans before incurring the expenses, and because he did not attend an examination the respondent determined was necessary for it to consider the benefits.
3Specifically, the applicant identified fifteen benefits, or issues in dispute. Six issues, including interest and an award under Ontario Regulation 664, are part of an in-person substantive hearing scheduled for October 2019; one issue has been withdrawn.
4Eight of the issues in the application form the subject of this preliminary issue hearing. This decision determines whether the applicant can proceed to the in-person substantive hearing on the merits with respect to these issues.
5Except for one expense for foot orthotics, I find that the applicant cannot proceed because he did not submit treatment plans for the benefits, and because he did not attend a required insurer’s examination.
RESULT
6The applicant can proceed with his appeal of the denial of foot orthotics for $89.99.
7The applicant is barred from proceeding with the remaining issues considered in this preliminary issue hearing because he is not in compliance with the applicable sections of the governing legislation.
BACKGROUND
8The applicant sought funding for treatment from the respondent for several months after the accident. There was also a time between 2012 and 2016 when requests for treatment subsided. In or around October 2016, the applicant submitted several requests for funding again.
9Treatments sought include massage, chiropractic treatment, physiotherapy treatment, osteopathic services, psychological treatment, and an occupational therapy assessment. Some of these were submitted as invoices, and the respondent funded several of those.
10Some time in 2016 the applicant submitted an invoice for $1,333.26 for expenses related to medical and rehabilitation benefits; this invoice included an expense for foot orthotics. This is identified as issue ii in paragraph 18 below. The applicant did not submit a treatment plan before incurring the expenses, and no treatment plan has been submitted to date.
11Of the above invoice, the respondent approved $330, on January 16, 2017. It denied the remaining of the expenses on the basis that they were not reasonable and necessary.
12On or around June 13, 2017, after approving funding for several invoices, the respondent advised the applicant that it required all treatment amounts to be submitted through a treatment plan.
13Subsequently, on various dates, the applicant submitted additional invoices for treatment incurred. These constitute five of the issues in dispute; issues vi, viii, ix, x and xi identified in paragraph 18 below. The respondent denied these on the basis that they were incurred before and without a treatment plan being submitted.
14On or around August 9, 2018, the applicant submitted two treatment plans for chiropractic treatment. These are identified as issues xiv and xv in paragraph 18 below. The respondent denied the treatment plans, and gave the applicant notice that it required him to attend for an examination on September 21, 2018. This is a section 44 assessment in the applicable legislation. The applicant did not attend.
Procedural Chronology
15The applicant filed his application with the Tribunal on or around July 18, 2018. At a case conference on November 7, 2018, the parties discussed the issues in dispute and the respondent raised preliminary issues. To afford the parties an additional opportunity to continue their discussions, another case conference was held on December 7, 2018.
16The case conference of December 7, 2018 scheduled an in-person hearing for the preliminary issues, for January 21, 2019. The in-person hearing did not proceed as scheduled. The applicant subsequently advised the Tribunal that he had attended briefly and left. A Tribunal order dated January 24, 2019 required the parties to advise the Tribunal whether they intended to proceed with the preliminary issue hearing.
17On April 26, 2018, the parties participated in a case conference. An Order from this proceeding set out the preliminary issues which are the subject of this decision.
ISSUES
18For ease of reference, the preliminary issues in dispute are numbered as they were when listed as part of the fifteen issues in dispute, set out in the Order of April 26, 2019. The preliminary issues are:
- Is the applicant prevented from claiming the following treatment expenses as a result of his failure to submit treatment plans in advance of incurring the expenses in accordance with Section 38(1.1) of the Schedule?
ii. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $1,003.26 ($1,333.26 less $330.00 previously approved) for other goods and services recommended by Dr. Christina Plaskos; Tamara McIntyre DNH, NNCP; and Robert Gula, M. OMSc, denied on January 16, 2017?
vi. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $45.00 for chiropractic treatment recommended by Dr. K. Singh, referred to in an OCF-6 and an invoice submitted on October 17, 2017 and denied on October 17, 2017?
viii. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $70.00 for osteopathic treatment recommended by Robert Gula, referred to in an OCF-6 submitted on October 18, 2017 and denied on November 15, 2017?
ix. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $158.00 for acupuncture treatment recommended by Dr. Quan, submitted on November 6, 2017 and denied on November 15, 2017?
x. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $200.00 for chiropractic treatment recommended by Dr. John Gleddie, referred to in an OCF-6 submitted on February 14, 2018, and denied on February 14, 2018?
xi. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $587.60 for gym membership recommended by Good Life, referred to in an OCF-6 and an invoice submitted on February 14, 2018 and denied on February 14, 2018?
- Is the applicant barred by Section 55 of the Schedule from proceeding with his claims for the benefits outlined in the treatment plans below, as a result of the applicant’s refusal to attend a Section 44 insurer’s examination?
xiv. Is the applicant entitled to a medical or rehabilitation benefit in the amount of 2,200.00 for massage therapy recommended in a treatment plan by Absolute Chiropractic & Wellness Centre dated August 9, 2018 and denied by the respondent?
xv. Is the applicant entitled to a medical or rehabilitation benefit in the amount of $2,440.00 for massage therapy recommended in a treatment plan by Absolute Chiropractic & Wellness Centre dated August 9, 2018 and denied by the respondent?
PRELIMINARY RULING
19At the outset of the hearing, the respondent asked for the previous adjudicator who had presided, albeit briefly, at the in-person hearing of January 21, 2019, to preside at this teleconference hearing as well. The respondent believed the adjudicator was seized.
20Based on the Tribunal orders on file, which are silent on whether the adjudicator was seized, and the fact that the January 21 hearing did not proceed, I determined that the adjudicator was not seized, and proceeded with the hearing.
ANALYSIS AND REASONS
21The first question I need to determine is which of the Statutory Accidents Benefits Schedule applies: The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (“Schedule 1996”), given that the accident occurred in January 2010, or the Statutory Accidents benefits Schedule – Effective September 1, 2010 (“Schedule 2010”), which brought changes to procedural rights of a claim.
22I find that sections 38, 44 and 55 of Schedule 2010 apply in this case. Section 38 is for “Claims for medical and rehabilitation benefits and for approval of assessments, etc. Section 44 addresses “Examination required by insurer”. And section 55, under “Restriction on proceedings”, sets out the conditions under which an insured is precluded from proceeding with an application to the Tribunal.
23This is based on section 3(1.2) of Schedule 1996 which states: Section 24 and Parts X, XI, XII, XIII and XV do not apply after August 31, 2010. Part X is the relevant part here because it addresses “Procedures for Claiming Benefits”. Therefore, Schedule 1996 does not apply after August 31, 2010, which means that Schedule 2010 comes into play for the preliminary issues in dispute.
24The respondent made submissions on this subject. Its submissions are in line with my determination.
25I find that the applicant can proceed with his appeal related to an invoice for foot orthotics for $89.99, submitted as an expense along with other expenses under issue ii.
26I further find that the applicant cannot proceed with his appeal of all other expenses he incurred prior to submitting a treatment plan. Therefore, issues ii (less the expense for foot orthotics), vi, viii, ix, x and xi, as listed in paragraph 18 above cannot proceed to the in-person substantive hearing or before the Tribunal.
27Section 38(2) of Schedule 2010 sets out the procedures for submitting a claim for medical and rehabilitation benefits. It states:
An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,
(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;
(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to this the application relates; or
(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,
(i) drugs prescribed by a regulated health professional, or
(ii) goods with a cost of $250 or less per item.
Expense for foot orthotics for $89.99
28I find that this expense falls under one of the exceptions, 38(2)(c)(ii). The expense is for orthotics and under $250, and, according to this section, it does not need to be submitted through a treatment and assessment plan.
29The respondent submitted that section 38(2)(c)(ii) permits orthotics costing under $250 to be incurred without a treatment plan, but only if the expense is “reasonable and necessary as a result of the impairment sustained by the insured person”. The respondent noted that the expense is for diabetic orthotics and is therefore not related to any impairment from the accident and cannot proceed before the Tribunal.
30I disagree. The question for this preliminary issue hearing is limited to whether the applicant was required to submit this expense through a treatment plan. The answer to this question is no, he was not. This means that this expense can proceed to the substantive in-person hearing.
31Whether the foot orthotics is reasonable and necessary is a different question, fit to be considered by the hearing adjudicator with submissions from both parties. While I am aware of the respondent’s position, I do not have, nor did I seek, the applicant’s position, and cannot determine this issue. It is possible, for example, that the applicant needed the orthotics for symptoms that arose from the accident, to manage pain, or for some other reason. In any event, whether this expense is reasonable and necessary is not properly before me, but a question to be argued at the substantive in-person hearing.
All other expenses submitted without a treatment plan
32The other expenses do not fall under the exceptions laid out in section 38(2). This means that the applicant was required to submit a treatment plan before incurring those. The parties do not disagree that the expenses were not submitted on a treatment plan before they were incurred. This is a prescribed requirement. As such, I have no power to waive the requirement.
33The applicant did not make submissions specific to this subject. He did, however, express his frustration with what he describes as a lack of fairness and good faith on the part of the respondent.
34The respondent filed written submissions and case law in support of its position that the applicant is barred from proceeding with the disputed issues for which he submitted invoices with expenses incurred, but no treatment plan.
35As a result, save for the expense for foot orthotics, the applicant cannot proceed with these issues before the Tribunal.
Non-attendance at a section 44 insurer’s examination
36I find that the applicant cannot proceed with his appeal of denied treatment plans for which he has not attended at the scheduled section 44 insurer’s examination. Therefore, issues xiv and xv, as listed in paragraph 18 above, cannot proceed to the substantive in-person hearing.
37Two sections of Schedule 2010 apply: section 44, which governs examinations required by an insurer; and section 55, under restriction on proceedings. Section 44 indicates that an insurer may require and request an examination to determine if an insured is entitled to a benefit. It also states that attendance at an insurer’s examination is mandatory, provided it is “not more often that is reasonably necessary”. Section 55(1)(2), specifically, then prevents the insured from appealing a benefit in the event of non-attendance at a properly scheduled examination.
38The respondent submits that it required the applicant to be assessed because it had approved several treatment plans in 2017 and determined that an updated medical opinion was required to decide whether the proposed treatments were reasonable and necessary. The respondent relies on Tribunal decisions for its position that the applicant must attend the insurer’s examination or be barred from proceeding to a hearing on the disputed treatments.
39Prior to this hearing, on May 17, 2019, the applicant advised the Tribunal and the respondent by email that he would participate in an assessment, if it was scheduled in St. Catharines, and asked for lunch and transportation expenses if the assessment were to be scheduled in another city. I am not clear which assessment he meant, and his brief submissions at the hearing did not clarify this for me. Again, the applicant essentially submitted that he was frustrated with the process he must follow to access benefits that are owed to him, that it is unfair, and it unnecessarily delays access to benefits. But he did not clarify whether he would attend an assessment for the two treatment plans in question.
40Based on the facts of this case, I find that the respondent’s notice and reasons for an examination satisfy the requirements outlined in section 441. Simply put, the respondent’s notice must meet specific requirements, and the insurer’s examination must be “reasonably necessary”. I find that the notice is adequate, and the examination is reasonably necessary.
41The respondent’s request was based on its need for an updated medical opinion, given that the applicant’s diagnosis was from 2010, and the treatment plans were submitted in 2018, eight years later. The applicant’s diagnosis dated July 8, 2010 was of a WAD I, lumbosacral and left shoulder sprain. I find that the respondent’s request was reasonably necessary for it to determine the applicant’s entitlement to the chiropractic treatments.
42After receiving the two treatment plans, the respondent advised the applicant in a letter dated August 29, 2018 that it needed an updated medical opinion, and that the applicant was required to attend an examination. Another letter dated September 6, 2018, provided notice that the assessment had been scheduled, with detailed reasons regarding the need for an updated medical opinion, and ongoing prognosis. This letter provided the date and time of the examination, the name of the examiner and his title, the dispute mechanisms available to the applicant, and informed the applicant that he needed to attend before he could dispute the respondent’s decision. Given these, I find that the respondent provided adequate notice as required by section 44.
43With no evidence or any information for me to consider otherwise, I find that the applicant’s failure to attend the properly scheduled insurer’s examination prevents his dispute from proceeding to a hearing. This is according to section 55(1)2. That said, if the applicant attends the assessment, he is entitled to dispute a denial before the Tribunal, if indeed the treatment plans are denied.
44I note that section 55(2) permits the Tribunal to allow an insured to apply despite being statute-barred under section 55(1)2. I decline to exercise the discretion afforded by this section, as I have not been provided with a reasonable explanation for non-attendance. I appreciate that this is not the outcome the applicant had hope for. However, given the circumstances of this case, the legislation is clear, and it disentitles him from proceeding unless he attends the examination.
45For all these reasons, I conclude that the applicant can proceed to the in-person substantive hearing with the expense for foot orthotics only. As for the remaining issues in dispute, he cannot proceed.
Released: September 30, 2019
Samia Makhamra
Adjudicator