Licence Application Tribunal
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.N.]
Appellant(s)
and
The Guarantee Company of North America
Respondent
ORDER
PANEL:
Nathan Ferguson, Adjudicator
Appearances:
For the Appellant:
[G.N.], Applicant
Gary Mazin, Counsel
For the Respondent:
The Guarantee Company of North America,
Kerry Figliomeni, Counsel
Heard:
In Writing: May 6, 2019
REASONS FOR ORDER
OVERVIEW
1The applicant was involved in an automobile accident on June 28, 2018, 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 applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
2The applicant seeks payment of two treatment plans – one for a capacity assessment and the other for the costs of a court application for guardianship. The respondent argues that these are not payable.
3For the reasons that follow, I find that the treatment plans are not payable and as a result no award or interest are payable.
ISSUES
4As outlined in the order issued by Adjudicator Msosa on March 13, 2019, the issues in dispute were identified and agreed upon by the parties as follows:
i. Is the applicant entitled to payments for the cost of examinations in the amount of $1,522.04 for a capacity assessment, recommended by Ms. Louise Silverston in a treatment plan dated July 27, 2018, and denied by the respondent on August 9, 2018?
ii. Is the applicant entitled to payments for the cost of a court application for guardianship in the amount of $15,200.00, submitted by J. Fisher and Associates dated July 26, 2018, and denied by the respondent on August 9, 2018?
iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
5There is no dispute that the applicant was injured seriously in this accident and that he has required significant care and intervention following the accident. The issues are essentially whether the treatment plans submitted by the applicant are payable because of the operation of section 38(2) of the Schedule, and because of the respondent’s assertion that the legal fees claimed are outside the legislative framework or scheme.
6The applicant argues that the treatment plans submitted were submitted on an emergency basis and are reasonable and necessary. The applicant also argues that the treatment plans were submitted as soon as possible in the circumstances, within days of having retained legal counsel.
Capacity Assessment – Operation of Section 38(2)
7There is no dispute that the treatment plan for the capacity assessment described above was submitted after the expense of the assessment was incurred. Section 38(2) of the schedule precludes the respondent’s liability for an expense such as this unless it fits into an exception listed in subsections 38(2)(a), (b), (c) or (d). The applicant argues that the exception outlined in subsection 38(2)(b) applies:
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, …
(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 which the application relates…
8The applicant argues that the expense in this instance was incurred on an emergency basis. This is because the applicant was unable to understand complex medical or legal issues as a result of his injuries and required a capacity assessment in order to set out necessary information relating to decision making.
9The applicant stressed that steps were taken immediately after retaining counsel arguing that the expenses were incurred within five business days of “having retained counsel” (paragraph 5 of the Applicant’s Reply Submissions). The applicant also emphasized that the applicant’s son, who filed this application on his behalf, would not reasonably have known to conduct a capacity assessment.
10The respondent, on the other hand, submitted that the applicant’s file was already being adjusted by the time that counsel was retained. The respondent argues that nothing in the documentation up to that time indicated that capacity was an issue and in fact noted that the applicant’s counsel indicated the retainer was by the applicant directly, suggesting no capacity issue with respect to giving instruction at that time.
11I find on a balance of probabilities that the OCF-18 for the capacity assessment in this instance is not payable by the respondent because the provisions of section 38(2) were invoked by virtue of the assessment’s expense being incurred before the OCF-18 was filed, and the applicant has not met the emergency exception claimed in s. 38(2)(b).
12While I appreciate that the applicant was in a difficult position, the legislation does not include an exception for goods or services provided on an emergency basis within five days of retaining counsel. The exception applies within five days of the accident. In this instance there is no indication that any steps were taken with regard to this treatment plan in the relevant and applicable timeframe.
13This assessment was conducted approximately one month after the accident. At that time, there is no indication that the assessment was crucial to the applicant’s function or rehabilitation. It may have been important in a litigation context, but I find that it was not emergency treatment and there was no need to complete the treatment before submitting the OCF-18 as required by the Schedule. Therefore, the capacity assessment is not payable.
The Costs of the Court Application for Guardianship
14The applicant also sought the costs of applying to Court for guardianship as a result of his capacity, or lack thereof. The applicant argued this is reasonable and necessary as it impacts essentially all steps to be taken in this application and other aspects of the applicant’s daily life such as making important financial, legal or health decisions. The respondent argued that the cost is not related to the grounds set out in sections 15 and 16 of the Schedule. These are legal costs related to a legal issue which the respondent considered separate from the present application.
15The respondent also directed the Tribunal to the form submitted by the applicant’s son and counsel “Representing Minors and Incapable Persons”. The form is sufficient to allow the applicant to be represented in this application and process, though it is not sufficient for other purposes. The respondent submitted that this form is a more reasonable and much less expensive manner of achieving the applicant’s purpose in the context of statutory accident benefits. That is, if there is additional cost necessary to fully participate in other proceedings, such as tort proceedings, those costs ought to be addressed within that process and not be taken from the applicant’s medical and rehabilitation benefits under the Schedule.
16I find that there is no applicable coverage for legal fees for a court order regarding guardianship under the Schedule. I agree with the respondent that if this were intended by the legislature, it would have been enumerated. The situation in which the applicant unfortunately finds himself is not unique – capacity issues are regularly identified and addressed after an accident. This is the reason for the Tribunal’s forms regarding incapable persons which are an inexpensive alternative to a court order. I agree with the applicant that this will not be sufficient in all circumstances, however, for the purposes of the present application there is no dispute that the form is sufficient to address the applicant’s concerns about capacity. External matters, like other court proceedings, may require significant additional costs to be incurred, but this is not reasonable and necessary in the context of the present application before the Tribunal. Nor, in my view, is there any provision in the Schedule that covers the costs of the application for guardianship in this instance.
Award and Costs
17Having found that the applicant is not entitled to payment of the treatment plans described above, it follows that I find the applicant is not entitled to an award as there was no unreasonable delay or withholding of these costs in this instance. There is no indication, in my view, that the respondent’s behaviour warrants such remedies.
CONCLUSION
18For the reasons outlined above, the application is dismissed.
Released: January 16, 2020
___________________________
Nathan Ferguson
Adjudicator