G.T. v. Aviva Insurance Company of Canada, 2019 CanLII 101464

Citation: G.T. vs. Aviva Insurance Company of Canada, 2019 ONLAT 18-010097/AABS

Tribunal File Number: 18-010097/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.T.

Applicant

and

Aviva Insurance Company of Canada

Respondent

AMENDED DECISION ON PRELIMINARY ISSUES

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Kim Mohammed-Sieudhan, Paralegal

For the Respondent:

Kevin Griffiths, Counsel

HEARD IN WRITING:

April 23, 2019

OVERVIEW

1The applicant, G.T., was injured in an automobile accident on January 31, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva Insurance Company of Canada (“Aviva”), the respondent.

2G.T. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to determine her entitlement to weekly income replacement benefits (“IRBs”), attendant care benefits (“ACBs”) and to six treatment plans for chiropractic treatment, an in-home assessment and three neuropsychological assessments.

3At the case conference held on January 28, 2019, Aviva raised two preliminary issues. It first submits that, pursuant to s. 38(2) of the Schedule, G.T. is statue-barred from proceeding with her claim for an in-home assessment because she incurred the cost of the assessment before it was submitted to Aviva via a treatment plan. Second, Aviva submits that, pursuant to s. 56 of the Schedule, G.T. is statue-barred from proceeding with her claim for the cost of three neuropsychological assessments because she failed to apply to the Tribunal within the limitation period of two years after Aviva’s refusal to pay for the treatment plans. As a result, a written preliminary issue hearing was scheduled.

PRELIMINARY ISSUES

4The following preliminary issues are to be decided:

(i) Is G.T. statute-barred from pursuing her claim for an in-home assessment in the amount of $2,248.90 because the treatment plan was incurred before it was submitted to Aviva pursuant to s. 38(2) of the Schedule?

(ii) Is G.T. statute-barred from pursuing her claim for the cost of three neuropsychological assessments to the Tribunal due to the limitation period in s. 56 of the Schedule?

RESULT OF PRELIMINARY ISSUES

5I find that G.T. is statute-barred pursuant to s. 38(2) of the Schedule from pursuing her claim for an in-home assessment because the treatment plan was incurred before it was submitted to Aviva.

6I also find that G.T. is statute-barred from pursing her claim for the three neuropsychological assessments as she applied to the Tribunal outside of the two-year limitation period set out in the Schedule. I am also not prepared to extend the limitation period in this matter pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999.¹

ANALYSIS

In-Home Assessment

7G.T. is seeking payment for the cost of an in-home assessment in the amount of $2,248.90. This amount includes a file review, an in-home intake interview, a physical assessment, an assessment of attendant care, functional testing, report preparation, travel time, mileage and completion of a treatment plan (OCF-18). The OCF-18 was dated February 26, 2016 but was not submitted to Aviva until March 7, 2016.² G.T. concedes that the OCF-18 for the assessment was submitted to Aviva on this date.³

8G.T. also concedes that the in-home assessment took place on March 4, 2016.⁴

9Section 38(2) of the Schedule states that an insurer is not liable to pay for an assessment or examination which has been incurred prior to the submission of an OCF-18 by the insured person. There are four exceptions to this rule that are set out in s. 38(2). However, G.T. does not rely upon any of the exceptions in her submissions and, at any rate, none of the exceptions apply in this case.

10Instead, G.T. argues that her application to the Tribunal for the in-home assessment should not be statute-barred for the following reasons:

(i) G.T. relies upon the decision in 16-001756 v Aviva Insurance Company of Canada⁵ in which, G.T. submits, the Tribunal held that there may be emergencies where treatment is urgently needed and that it would be seriously detrimental to wait for the approval process to run its course.⁶ G.T. submits that, due to the nature and seriousness of her injuries, this is such a case;

(ii) she complied with s. 38(3) of the Schedule, as an OCF-18 was signed by G.T. and, therefore, the OCF-18 was submitted to Aviva in accordance with the Schedule;

(iii) if the service requested is reasonable and necessary, it shall be funded, regardless of whether or not the OCF-18 was provided before or after the service sought was provided; and

(iv) the treatment plan, assessment and Form 1 were in full compliance with s. 42(1) and 42(5) of the Schedule.

11I disagree with G.T.’s arguments. First, in 16-001756, the Tribunal held that emergencies were addressed by the exceptions found in the Schedule, which, again, do not apply in this case. Second, despite the fact that the OCF-18 complied with requirements set out in s. 38(3) of Schedule, G.T.’s argument that the treatment sought therein shall be funded regardless of whether or not the OCF-18 was submitted before or after the services were provided if they were reasonable and necessary is completely contrary to s. 38(2) of the Schedule. Unless one of the four exceptions apply, s. 38(2) requires an applicant to submit an OCF-18 before incurring the expense of the assessment. This is a requirement prescribed by law and, as such, it cannot be waived by me. Moreover, ss. 42(1) and 42(5) do not relieve G.T. from the requirement in s. 38(2) since the former sections apply to applications for ACBs, not in-home assessments, which is what is at issue.

12Therefore, I find that G.T. is statute-barred from seeking payment for the in-home assessment at the Tribunal due to her non-compliance with s. 38(2) of the Schedule.

Neuropsychological Assessments

13Three treatment plans for a neuropsychological assessment, each in the amount of $2,294.54, were for a three-part neuropsychological assessment recommended by Dr. J. Gilman. There is no dispute that G.T. submitted these treatment plans to Aviva on June 17, 2016.

14In response to the OCF-18s, Aviva issued a First Denial Letter on July 4, 2016 to G.T.’s legal representative indicating that it was unable to determine whether the three assessments were reasonably required for the injuries that G.T. sustained as a result of the accident. Aviva also advised that it would be scheduling an insurer examination under s. 44 of the Schedule to review the recommended assessments.

15Aviva submitted that all three treatment plans were ultimately denied via correspondence dated October 11, 2016. Aviva relies upon an affidavit sworn by Dawn Robinson, adjuster with Aviva, who swears that, on October 11, 2016, she wrote to the applicant enclosing a copy of an insurer’s examination (IE) report and faxed the same letter and IE report to G.T.’s legal representative at 8:49 a.m. The fax confirmation shows that the fax was successfully sent to G.T.’s representative at 10:11 a.m. on October 11, 2016. The fax cover sheet complied with the requirements set out in s. 64(19) of the Schedule.

16G.T. submits that neither she nor her legal representative received the October 11, 2016 correspondence whether by fax, email or mail “until the application was filed with the Honourable Tribunal that the above-referenced correspondence was never received by the Applicant.”⁷

17On March 17, 2017, G.T. filed her first application to the Tribunal (Tribunal file number 17-001301/AABS) to determine her entitlement to several benefits including the three neuropsychological assessments in dispute.

18Aviva filed a response to G.T.’s first application on March 20, 2017 which included the October 11, 2016 denial letter.⁸

19On May 12, 2017, G.T. withdrew her first application with the Tribunal for Tribunal file number 17-001301/AABS.⁹

20G.T. submitted that she filed her second application to the Tribunal on October 19, 2018 via courier. G.T. relies upon Rule 6.2(d) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) to support this filing date.

21Aviva submits that G.T.’s second application was filed with the Tribunal on October 23, 2018 based on correspondence received from the Tribunal dated November 17, 2018 that confirmed the October 23, 2018 filing date.

Was G.T.’s second application filed with the Tribunal outside of the two-year limitation period?

22As Aviva proposes that it ultimately denied the three neuropsychological assessment on October 11, 2016, as opposed to July 4, 2016, I am not considering the July 4, 2016 date in my determination on the limitation period issue.

23I find that Aviva’s October 11, 2016 denial letter was successfully faxed to G.T.’s legal representative on October 11, 2016 and, therefore, was served on G.T. on that date pursuant to s. 64(2) of the Schedule.

24I also find that Aviva’s October 11, 2016 denial letter was mailed to G.T. on October 11, 2016. This method of delivery is permitted by s. 64(2) of the Schedule. Section 64(18) states that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. In this case, the date that the mailed copy of the letter was deemed received by G.T. was October 18, 2016.

25I give no weight to G.T.’s submissions that neither she nor her legal representative received the October 11, 2016 correspondence until the filing of her second application for several reasons. First, there is no sworn affidavit before me from either G.T. or her legal representative confirming that the October 11, 2016 denial letter was never received by either person. This information was only contained in G.T.’s submissions, which are not evidence. Second, the credibility of G.T.’s submissions are seriously called into question as in its reply evidence, Aviva submitted several documents from G.T.’s first application to the Tribunal that included the October 11, 2016 denial letter. Further, the October 16, 2016 denial letter was included as part of G.T.’s second application. For G.T. to have included it as part of her second application, it is clear that she would have had to receive it prior to her second application being filed with the Tribunal.

26I therefore find that the two-year limitation period began to run on October 11, 2016, as this was the earliest of the two possible dates that G.T. received the October 11, 2016 denial letter from Aviva.

27I find that G.T.’s second application to the Tribunal was filed on October 23, 2018 and not on October 19, 2018 as she argues. G.T. provided no evidence to support her proposed filing date of October 19, 2018, such as a sworn affidavit or a courier confirmation. I accept Aviva’s evidence that G.T.’s second application was filed with the Tribunal on October 23, 2018. As a result, I find that G.T. filed her second application outside of the two-year limitation period set out in s. 56 of the Schedule.

28Even if I accepted the later of the two possible service dates of Aviva’s October 11, 2016 denial letter, which I do not, G.T.’s second application to the Tribunal would also be considered filed after the expiry of the two-year limitation period.

Section 7 of the LAT Act

29As I have found that G.T. applied to dispute Aviva’s denial of the treatment plans for the three neuropsychological assessments outside the two-year limitation period, G.T. has requested that I consider extending the limitation period pursuant to s. 7 of the LAT Act.

30For the reasons that follow, I find that this is not a matter in which I am prepared to use my discretion to extend the two-year limitation period. Therefore, G.T. is statute-barred from pursuing her application to the Tribunal for the three neuropsychological assessments in the amount of $2,294.54 each recommended by Dr. J. Gilman and submitted to Aviva on June 17, 2016.

31Section 7 of LAT Act gives the Tribunal power to extend the time, despite any limitation of time fixed by or under any Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief. In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

(i) the existence of a bona fide intention to appeal within the appeal period;

(ii) the length of the delay;

(iii) prejudice to the other party; and,

(iv) the merits of the appeal.¹⁰

32While the length of the delay in this matter is minimal, I cannot conclude that G.T. had a bona fide intention to appeal the three neuropsychological assessments within the appeal period. In fact, the evidence submitted indicates otherwise. G.T. withdrew her first application to the Tribunal, which was filed within the appeal period, to dispute the three neuropsychological assessments at issue in this application. I place significant weight on this withdrawal and the absence of any satisfactory explanation for G.T.’s delay in re-applying to the Tribunal. Additionally, while I am not prepared to render a decision on the merits of the treatment plans for the three neuropsychological assessments, it appears as though the proposed three assessments are actually three parts of one overall assessment. As such, I also agree with Aviva that it appears that there would be little merit to the appeal as the overall neuropsychological assessment would exceed the $2,000.00 maximum cap in the Schedule.

33For all of the above reasons, I find that G.T. is statute-barred from proceeding with her claim for the three neuropsychological assessments to the Tribunal and I am not prepared to use my discretion pursuant to s. 7 of the LAT Act and extend the limitation period in this matter.

CONCLUSION

34Based on my reasons set out above, I find that:

(i) G.T. is statute-barred pursuant to s. 38(2) of the Schedule from pursuing her claim for an in-home assessment because the treatment plan was incurred before it was submitted to Aviva for consideration;

(ii) G.T.’s second application to the Tribunal, being the application in this matter, was filed on October 23, 2018, which was after the expiry of the two-year limitation period set out in the Schedule; and

(iii) G.T. is statute-barred from pursuing her claim for the three neuropsychological assessments to the Tribunal as I am not prepared to extend the limitation period pursuant to s. 7 of the LAT Act.

35Given that no substantive issues remain in dispute between the parties as a result of my decision on the preliminary issues, the application is dismissed.

Released: December 19, 2019

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1S.O. 1999, c. 12, Sched. G (the “LAT Act”).
2. 2Affidavit of Dawn Robinson sworn March 11, 2019, para. 3.
3. 3Applicant’s Submissions, tab 1, para. 6.
4. 4Ibid.
5. 52017 CanLII 33655 (ON LAT) (“16-001756”).
6. 6Ibid. at para. 23.
7. 7Applicant’s Submissions, Tab 1, para. 15.
8. 8Affidavit of A.F. sworn April 16, 2019, para. 4.
9. 9Ibid. at para. 6.
10. 1016-002336 v. North Blenheim Mutual Insurance Company, 2019 CanLII 58193 (ON LAT) at para. 13.