Citation: [A.B.] vs. Aviva Insurance Canada, 2019 ONLAT 18-004653/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:
A.B. Appellant
and
Aviva Insurance Canada Respondent
DECISION
PANEL: Nathan Ferguson, Adjudicator
APPEARANCES: For the Appellant: [A.B.], Applicant Kristy Kerwin, Counsel
For the Respondent: Pamela Quesnel, Counsel
Heard: In Writing: May 6, 2019
OVERVIEW
1The applicant was involved in an automobile accident on April 11, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2Specifically, the respondent refused to pay for treatment plans completed by an occupational therapist and relating to a Catastrophic Determination Assessment and a treatment plan for physiotherapy. The applicant disagreed with the respondent’s decision.
3A case conference was held but the parties did not reach a resolution. The matter proceeded to this written hearing.
PRELIMINARY ISSUES
Claim for Award
4The applicant added the issue of an award under s.10 of O. Reg 664 by way of written submissions and I considered the issue. This was initially raised in the application and although specific details were not provided until the hearing, I find the issue relatively straightforward and note that it is an issue that can be raised in any application. I find the respondent had ample opportunity to address the issue and did so in responding submissions.
5The respondent argued that the claim for an award ought to be dismissed because it is raised at the hearing and is prejudicial. I appreciate that the award was not apparently discussed at the case conference in this matter, but note that it was raised as an issue in the application which is the basis of this proceeding. Therefore, I find that it is not prejudicial to consider the issue, especially as the respondent was able to address the claim in its response.
Which Version of the Statutory Accident Benefits Schedule (SABS) Applies?
6The applicant relies on various provisions of the November 1, 1996 version of the SABS. The respondent argues the applicable version is that which became effective September 1, 2010. I find that the applicant’s entitlement to a CAT assessment is determined by the 2010 SABS.
7S. 268(1)[7] of the Insurance Act (the “Act”) specifically states insurance policies and contracts are governed by the SABS which can be amended from time to time and terms of insurance contracts can be impacted by amendments to the Schedule subject to any terms, exclusions and limits set out in the regulation.
8The applicant points to section 38 in particular in written submissions. However, I find this version of the SABS is not applicable.
9The November 1, 1996 version of the SABS states (s.3(1.2)) that section 24 and parts X, XI, XII, XIII and XV of this version no longer apply after August 31, 2010. This includes the portion of the SABS addressing the costs of examinations and medical and rehabilitation benefits outlined in section 38. That is, the sections referred to by the applicant have been repealed and replaced.
10Section 2(2) of the September 1, 2010 version of the SABS underscores that amounts previously paid under section 24 are now payable under section 25(1), (3), (4) and (5) of the September 1, 2010 SABS. Therefore, I applied the version of the SABS effective September 1, 2010.
11This is specifically addressed by the transitional rules in both the 1996 and 2010 SABS and is confirmed by FSCO Superintendent’s Bulletin A-04/10. I find that the transitional rules do not support the interpretation that the applicant proposes.
12As s.3 of the 1996 SABS specifically states that s.24 from the 1996 Schedule that allows for rebuttal reports does not apply after August 31, 2010, I find that there is a clear cut-off for the use of the same. If s.24 was meant to apply prospectively then the transitional rules would have defined and allowed for such application.
HST
13The respondent argued that HST is properly included in medical and rehabilitation limits, despite several Auto Bulletins issued by the Financial Services Commission (“FSCO”) stating this is not the case. There is no dispute about the content of the bulletins or guidelines.
14The respondent accurately asserted that these bulletins are not binding (as is the Insurance Act, for example) and submitted that it is an unreasonable interpretation to conclude HST is not a benefit for the purpose of determining remaining medical and rehabilitation limits while it is considered a benefit in terms of reimbursement under the SABS for the same.
15The applicant argued that the bulletins are a clear directive from FSCO, the insurer’s regulating body. In addition, the applicant points to the Tribunal’s case law on this point including H.A. v. Aviva General Insurance,1 and J.D. v. Aviva General Insurance,2 concluding that HST, as a tax, is not part of the benefit limits set out in the SABS.
16I agree with the applicant. The HST is not a part of the benefit limits set out in the SABS. This is consistent with the intent plainly expressed by FSCO and with the case law on this point.
ISSUES
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,138.00 for occupational therapy services (catastrophic determination assessment) recommended by Total Healthcare Solutions in a treatment plan (OCF-18) denied on May 26, 2016?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,460.00 for occupational therapy services (catastrophic determination assessment) recommended by Total Healthcare Solutions in a treatment plan (OCF-18) denied on May 26, 2016?
iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,460.00 for occupational therapy services (catastrophic determination assessment) recommended by Total Healthcare Solutions in a treatment plan (OCF-18) denied on May 26, 2016?
iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,748.56 for physiotherapy, rehabilitation and pool therapy recommended by various providers in a treatment plan (OCF-18) denied on September 27, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
Catastrophic Impairment Assessments (Issues i, ii and iii)
17The applicant argued that there has been a deterioration in the applicant’s condition since an OCF-19 (Application for Determination of Catastrophic Impairment) was submitted in June 2013.
18The respondent argued that there is insufficient evidence to determine that there has been a material change in the applicant’s status and noted specifically that the applicant submitted incomplete medical evidence including only a few supportive documents rather than a comprehensive set of documentation. The applicant argued that the evidence provided is illustrative of a deterioration and sufficient in the absence of any contradictory reporting to show that a material change occurred.
19In addition, the respondent argued that the applicant’s current OCF-18s are in the nature of a rebuttals to the respondent’s assessment of the applicant’s impairment and therefore not allowable under the applicable version of the SABS. The applicant argued these are not rebuttal reports as they do not immediately follow or contemplate the reports referenced by the respondent and considered a considerable passage of time and change over that time.
20Finally, the respondent argued that the OCF-18s cannot be considered in any event as they were not completed by a physician as is required in the case of catastrophic impairment assessments, but were completed by an occupational therapist.
21I agree with the respondent on this point. Sections 45(1) and (2)1. of the SABS state:
An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
22In this instance, the occupational therapist that completed the OCF-18s identified in issues i, ii, and iii, and identified the same as “Catastrophic Determination” assessments. These must be conducted by a physician. There is no reference to a physician in the completion of these assessments or in any related examination(s). Therefore, the assessments are not allowable.
23It follows that the applications for these medical and rehabilitation expenses (issues i, ii and ii) are denied.
Sufficiency of Evidence
24The respondent argued that the application should also be denied because the applicant did not provide the necessary evidence to determine eligibility. For example, the applicant did not provide a copy of the OCF-18s in dispute. The respondent states that the applicant provided copies of the OCF-18s in dispute only in reply submissions in this written hearing, effectively precluding the respondent from addressing the issues in the course of this proceeding.
25The applicant disputed this in reply submissions, specifically stressing that the information in question (the complete AB file) was requested from the respondent on several occasions (November 21, 2018, December 14, 2018 and January 29, 2018) and these requests were ignored such that the applicant could not have provided the information as it was essentially withheld by the respondent. However, in correspondence dated April 15, 2019 the applicant indicated that their own submission on this point was erroneous and ought to be disregarded.
26The applicant also argues the fax back page of the OCF-18s are sufficient information in any event and these were included in the initial submissions (at tabs 9, 12, and 13). I note that the respondent’s May 26, 2016 letter confirms receipt of the “3-part Catastrophic Determination assessment” which address issues i, ii and iii in this matter.
27I do not agree with the respondent that the applicant failed to adduce sufficient evidence to make a determination as to the reasonableness or necessity of the treatment plans in dispute. The OCF-18s were in the respondent’s possession and were well known to the respondent in the course of this application process. The applicant’s failure to provide a full copy of the OCF-18s does not demonstrate the respondent was incapable of understanding or addressing the issues in dispute.
28In fact, the respondent did provide a brief reply which was not anticipated by the presiding adjudicator in the Case Conference Order, but which I allowed as it was necessary to briefly address the new evidence adduced by the applicant at this late stage. The reply of the respondent is a very brief letter simply stating that the respondent did provide the applicant with the complete AB file and attaching proof of correspondence dated October 16, 2018, November 28, 2018 and February 6, 2019 (incorrectly dated in 2018) which reference an enclosed and password protected CD comprising the complete AB file. The applicant did not provide any evidence of correspondence or communication indicating that the receipt was insufficient or the documents were in any way deficient or inaccessible. Therefore, I find that the respondent did provide the necessary productions to the applicant in this process.
29However, I also find that the OCF-18s were not new or surprising information that the respondent should not or could not have foreseen. It would be procedurally unfair to exclude the evidence from consideration for such technical reasons in my view.
Physiotherapy, Rehabilitation and Pool Therapy (Issue iv)
30Having allowed consideration of the OCF-18 relating to issue iv, I find that the is reasonable and necessary on a balance of probabilities and ought to be approved up to the monetary limits.
31The respondent confirmed in the October 4, 2016 Explanation of Benefits that the treatment plan was received and considered and that it was refused because the treatment plan, if paid, would exceed the maximum amount payable in this matter ($100,000.00). The respondent stated: “As your injuries have not been determined to be catastrophic in nature, the treatment proposed will exceed your policy limits and we are unable to consider the above treatment plan”.
32I find that the explanation of benefits does not address the reasonableness or necessity of the treatment plan. In fact, there is very little evidence before the Tribunal that would contradict or oppose the notion of anticipated benefit of gain as a result of this type of treatment. I agree with the respondent that the applicant did not provide complete clinical notes and records of treating practitioners, but various excerpts and detailed reports were provided, and these are all supportive of the applicant’s position that more physiotherapy treatment is recommended, required and will be beneficial.
33For example, in one paragraph of an OT Catastrophic Assessment Report dated June 28, 2016 (p.69 of 70) a brief excerpt of a Physiotherapy Progress Report is provided stating: “It is essential that [the applicant] continue with weekly treatment in order to treat her impairments and assist her in achieving her physiotherapy goals. It is this writer’s opinion that [the applicant] would greatly benefit from a therapeutic pool program in the community in addition to ongoing clinic-based physiotherapy treatment”.
34The December 26, 2018 Occupational Therapy Retroactive Attendant Care Assessment Report concludes (p.47) that the applicant ought to “Re-introduce physiotherapy to increase her range of motion, strength, overall tolerances and reduce pain”.
35The reports provided on the whole all support the applicant’s description of ongoing pain and limited mobility. This is referenced repeatedly throughout and is not contradicted. As a result, I find that the treatment plan is in keeping with its goals and is broadly supported by the medical professionals who had the benefit of treating and evaluating the applicant. Thus, I find that the treatment plan ought to be considered reasonable and necessary and approved to the monetary limits in place in this matter.
Special Award and Interest (Issues v and vi)
36The applicant is not entitled to interest on any overdue payments for issues i, ii or iii. The applicant ought to receive interest on the payments of any amount owing under issue iv.
37The applicant’s request for a special award is based on the contention that the respondent proceeded to this hearing knowing that the position on the inclusion of HST in the calculation of entitlement to medical benefits is contrary to existing case law and policies. The applicant cited FSCO bulletins on point as described above in the preliminary issues, and I agree with the applicant’s interpretation.
38However, I do not consider the denial of a claim based on a party’s interpretation of a regulatory provision a knowing or intentional violation of that provision. Even where the party takes a position contrary to a published bulletin or has altered its position over time, I do not consider a differing interpretation grounds for an award.
39Rule 10 states:
If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to …
40I find the applicant’s evidence does not demonstrate that the respondent acted unreasonably, or dealt in bad faith. I find that the respondent simply disagrees with the interpretation that the applicant prefers, and that I accept.
41Therefore, I am not satisfied that the respondent unreasonably delayed or withheld the payment of a benefit as I find no evidence suggested such delay or withholding on a balance of probabilities.
CONCLUSION
42For these reasons, A.B. is not entitled to the catastrophic assessment benefits for which she applied or for interest on these proposed assessments or an award.
43However, the applicant is entitled to payment of issue iv to the $100,000.00 limit in this instance and to interest on the payment of the same.
COSTS
44The applicant requested costs in the amount of $1,000.00 as allowed under Rule 19 of the Tribunal’s Rules of Practice.
45Costs are available as an exceptional remedy. I am not satisfied that the respondent’s action in this matter warrants the same. I do not consider the evidence sufficient to conclude that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith. While the respondent’s position with respect to HST was not accepted, I did not find it so far fetched as to warrant a costs award. The request is denied accordingly.
Released: December 18, 2019
Nathan Ferguson Adjudicator
Footnotes
- H.A. v. Aviva General Insurance, 2017 CanLII 56678.
- J.D. v. Aviva General Insurance, 2018 CanLII 83508.