Mattina v. Federated Insurance Company of Canada, 2020 CanLII 101808

Citation: Mattina vs. Federated Insurance Company of Canada, 2020 ONLAT 19-011267/AABS

Released: December 4, 2020

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:

Raffaella Mattina

Applicant

and

Federated Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Jacob Sazio, Counsel

For the Respondent:

Ryland MacDonald, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Raffaella Mattina, was injured in an automobile accident on February 14, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Federated Insurance Company of Canada (“Federated Insurance”), the respondent.

2Federated Insurance denied Ms. Mattina’s claim for physiotherapy and, as a result, Ms. Mattina submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on March 2, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Ms. Mattina entitled to $1,646.25 for physiotherapy recommended by Upper James Physio in a treatment plan (“OCF-18”) dated January 16, 2018, and denied on January 29, 2018?

(ii) Is Ms. Mattina entitled to interest on any overdue payment of benefits?

RESULT

5I find that the January 16, 2018 treatment plan for physiotherapy is payable starting on the 11th business day after the day that Federated Insurance received the OCF-18, plus interest in accordance with s. 51 of the Schedule, as a result of Federated Insurance’s failure to comply with the requirements under s. 38(8) of the Schedule.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7The OCF-18 in dispute listed Steven Schilthuis, physiotherapist, as the health practitioner and sough funding for 15 sessions of physiotherapy and a total body assessment.

Signed Treatment Plans – s. 38(3) of the Schedule

8Federated Insurance submitted that it is not liable to pay the disputed OCF-18 because it was not signed by Ms. Mattina or a health care professional as required by s. 38(3) of the Schedule. In support of its position, Federated Insurance relied upon the Financial Services Commission of Ontario’s (“FSCO’s”) decision in Chaparina v. State Farm Mutual Automobile Insurance Company.²

9Electronic submissions of treatment plans through HCAI became mandatory on February 1, 2011. Treatment plans submitted through HCAI require the provider to indicate that the treatment provider’s electronic signature is on file and that the treatment plan has been reviewed by the provider. Once completed, the OCF-18 is to be printed and physically signed by the provider, and a copy saved in the applicant’s file at the facility. The HCAI system simply does not allow for signed forms to be submitted to insurers at first instance.

10In her reply submissions, Ms. Mattina submitted that the first time that Federated Insurance raised the issue of non-compliance with s. 38(3) of the Schedule was in its written hearing submissions.³

11In its submissions, Federated Insurance does not provide any information as to when it raised the issue of the OCF-18 not being signed with Ms. Mattina or any correspondence requesting a hardcopy of the OCF-18. Federated Insurance also did not raise the issue of noncompliance with s. 38(3) of the Schedule in its January 29, 2018 and March 23, 2018 Explanation of Benefits issued to Ms. Mattina regarding the disputed treatment plan.

12I find that if Federated Insurance was not consenting to an unsigned copy of the OCF-18 being received through HCAI and wanted to view the executed hardcopy on file at the clinic, it was incumbent upon Federated Insurance to request a copy of the OCF-18 upon receipt of the electronic version through HCAI. There is no evidence before me that Federated Insurance raised this issue prior to its written submissions or any reason precluding Federated Insurance from raising this issue earlier. Federated Insurance’s failure to only raise the issue of the OCF-18 being unsigned at this late stage of the proceeding is inappropriate.⁴

13In any case, Ms. Mattina obtained and submitted the signed copy of the disputed OCF-18 in her reply submissions directly in response to Federated Insurance’s written submissions wherein she stated that the issue of non-compliance with s. 38(3) was first raised. The OCF-18 is signed by both Ms. Mattina and by Mr. Schilthuis.

14The submission of the signed OCF-18 distinguishes the facts in this matter from that of Chaparina, as in that case, the disputed treatment plans were not signed.⁵ Based on all of the evidence before me, I find no breach of s. 38(3) of the Schedule that would absolve Federated Insurance’s liability to pay the proposed OCF-18.

Federated Insurance’s Denial – s. 38(8) of the Schedule

15Ms. Mattina submitted that Federated Insurance failed to comply with its obligations under s. 38(8) of the Schedule as it provided no medical reasons for its denial of the disputed treatment plan. Federated Insurance provided no submissions in response to this issue.

16Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,⁶ in which the Executive Chair stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.⁷

17Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule. As such, the insurer is given a window to “cure” a defective notice but without such a cure, any goods, services, assessment and examinations set out in the treatment plan are payable starting on the 11th business day after the insurer received the OCF-18 as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.⁸

18While not raised by the parties, but for completeness, I also find that the OCF-18 does not need to be incurred in order for the consequences in s. 38(11) of the Schedule to apply.

19Section 38(11)2 of the Schedule states:

The Insurer shall pay for all goods, services, assessment and examinations described in the treatment and assessment that relate to the period starting on the 11th business day after the day that the insurer received the applicant and ending on the day the insurer gives a notice described in subsection (8) (my emphasis added).

20In M.F.Z. v. Aviva,⁹ the Executive Chair wrote the following in interpreting sections of the Schedule:

The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [citation omitted]. This approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.¹⁰

21On a plain reading of s. 38(11)2, there is no requirement for any services to be “incurred” as the section only states “that relate to.” Furthermore, “incurred” is found nowhere in this section yet it appears in countless other sections of the Schedule. Therefore, when s. 38(11)2 is read harmoniously with the Schedule as a whole, it is readily apparent that the legislature purposefully used the wording “that relate to” in lieu of “incurred” in s. 38(11)2. Moreover, when examining the intention of the Schedule, it would be contrary to its consumer protection purpose to require an insured person to incur an expense prior to a finding by the Tribunal on issues raised over compliance with s.38(8) of the Schedule because there would be little, if any, incentive for an insurer to comply with its obligations under s. 38 otherwise. Simply put, if an insured person is impecunious and unable to afford treatment, requiring such a person to incur an expense prior to adjudication on the issue of notice compliance with s. 38 does not achieve the consumer protection nature of the Schedule and would not deter insurers from failing to comply with their obligations under s. 38.¹¹

22I find that the January 16, 2018 OCF-18 is payable starting on the 11th business day after the day that Federated Insurance received the treatment plan as a result of Federated Insurance’s failure to comply with the requirements under s. 38(8) of the Schedule.

23On January 29, 2018, Federated Insurance provided a revised Explanation of Benefits (“OCF-9”) to Ms. Mattina denying the disputed treatment plan. Under the title, “Medical Reasons” in the portion of the OCF-9 for reasons why the expenses were not payable, Federated Insurance stated:

The subject motor vehicle accident happened two years and ten months ago and under normal course the injuries that you sustained should have reached maximum medical recovery. Upon review of the file we determined that there is no compelling evidence on file to substantiate the need for the treatment proposed in the above-noted Treatment Plans (OCF-18). We believe the proposed treatment is not reasonable and or necessary as a result of the injuries sustained in the accident.¹²

24Ms. Mattina was also advised at that time that an insurer examination (“IE”) pursuant to s. 44 of the Schedule was being scheduled to address the proposed treatment plan and that the details of the examination would follow under separate correspondence.

25A second OCF-9 was issued to Ms. Mattina on March 23, 2018. The relevant portions of this OCF-9 stated:

Please find enclosed a copy of the Section 44 Insurers Examination Report. We are providing this to you and your health practitioner who completed your OCF-18 Treatment Plan pursuant to Section 38(13) of the Statutory Accident Benefits Schedule (SABS). As per this report, the above item is not reasonable and necessary therefore not payable by the insurer.¹³

26I find that neither the January 29, 2018 OCF-9 nor the March 23, 2018 OCF-9 discharged Federated Insurance’s obligations under s. 38(8) of the Schedule. Neither denial provided any details regarding Ms. Mattina’s condition that formed the basis of Federated Insurance’s decision. Moreover, the January 29, 2018 OCF-9 failed to identify information about Ms. Mattina’s condition that it did not have but required by way of an IE.

27The March 23, 2018 OCF-9 references a s. 44 IE report with no indication who authored it and, aside from lacking any meaningful details, this OCF-9 only states that the disputed OCF-18 is not reasonable and necessary. This “explanation” for the denial is the conclusion of Federated Insurance’s consideration of the disputed treatment and provides no explanation why Federated Insurance concluded that the treatment plan was not reasonable and necessary. Furthermore, simply attaching an unidentified IE report to an OCF-9 with a bare statement that the OCF-18 was not reasonable and necessary is not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue and certainly does not serve the Schedule’s consumer protection goal.

28For all of these reasons, I find that Federated Insurance’s denials fall short of its obligations under s. 38(8) of the Schedule. As a result, the consequences set out in s. 38(11) are triggered and the treatment plan for physiotherapy is payable starting on the 11th business day after the day that Federated Insurance received the OCF-18 as Federated Insurance no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

29I also find that Federated Insurance’s submission that the proposed OCF-18 is not payable because it was not submitted to a collateral benefits provider as required by s. 47 of the Schedule does not affect my findings regarding its denials and the consequences in s. 38(11) of the Schedule. On a plain reading of s. 38(11), an applicant’s non-compliance with s. 47 does not exempt an insurer from the consequences of providing a deficient notice to an insured person and Federated Insurance has not provided any case law that supports such a finding.

Interest

30Interest is payable in accordance with s. 51 of the Schedule for the January 16, 2018 treatment plan.

CONCLUSION

31For the reasons outlined above, I find that the January 16, 2018 OCF-18 for physiotherapy is payable starting on the 11th business day after the day that Federated Insurance received the treatment plan, plus interest in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2FSCO A14-007595, February 19, 2016 (“Chaparina”).
3. 3Applicant reply submissions, para. 5.
4. 417-003450 v. Aviva Insurance Canada, 2019 CanLII 58153 (ON LAT) at para. 28 and S.J. v Aviva Insurance Canada, 2019 CanLII 76996 (ON LAT) at para. 33.
5. 5Supra note 2 at page 3.
6. 62018 CanLII 39373 (ON LAT).
7. 7Ibid. at para. 19.
8. 8See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at paras. 50-52, 59 and 64.
9. 92017 CanLII 63632 (ON LAT).
10. 10Ibid. at para. 39.
11. 11See P.M. v Aviva General Insurance, 2020 CanLII 80284 (ON LAT) at paras. 38-40.
12. 12Applicant’s Book of Exhibits, tab 24.
13. 13Applicant’s Document Brief, tab 25.