[R.B.] v. RSA Insurance, 2020 CanLII 19589

Citation: [R.B.] vs. RSA Insurance, 2020 ONLAT 19-002329/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:

[R.B.]

Applicant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

[R.B.], Applicant

Steven Bezaire, Counsel

For the Respondent:

RSA Insurance, Adjuster

Arthur R. Camporese, Counsel

HEARD: In Writing

October 15, 2019

REASONS FOR DECISION [AND ORDER]

OVERVIEW

1The applicant was involved in an automobile accident on April 14, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits and cost of examinations by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2I have been asked to decide the following issues:

i. Is the applicant entitled to payments for the cost of examinations in the amount of $16,272.00 for catastrophic assessments recommended by Omega Medical Associates in a treatment plan (OCF-18) submitted on January 28, 2019, and denied on February 6, 2019?

ii. Is the applicant entitled to a medical benefit in the amount of $1,795.50 for physiotherapy treatment recommended by Active Body Physical Therapy in a treatment plan (OCF-18) submitted on December 12, 2018, and denied on December 17, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $205.40 for medication submitted on December 19, 2018, and denied on February 7, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $1,901.88 for medication submitted on December 19, 2018, and denied on February 7, 2019?

v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to the cost of examinations.

4The applicant is not entitled to the claimed physiotherapy and prescription plans in dispute.

5The applicant is not entitled to an award.

REASONS

Issue i: Catastrophic Assessments

6A treatment plan for catastrophic assessments in the amount of $16,272.00 was submitted to the insurer on January 28, 2019. The insurer denied the treatment plan on the basis that the maximum medical and rehabilitation benefit had been reached.

7The applicant submits that catastrophic assessments are not subject to the medical and rehabilitation limits identified in section 18(5) of the Schedule. It is the applicant’s position that catastrophic assessments are addressed by section 25(1)5 of the Schedule.

8The respondent submits that catastrophic assessments are medical benefits and therefore are included in the monetary limit prescribed by section 18(3)(a) of the Schedule. It is the respondent’s position that since the applicant has exhausted the monetary limit for medical and rehabilitation benefits available under the policy for non-catastrophic injuries, the treatment plan is not payable.

9I agree with the applicant that the catastrophic assessments are not subject to the medical and rehabilitation limits set out in section 18(3)(a) of the Schedule.

10Section 18(3)(a) of the Schedule addresses the monetary limits for medical and rehabilitation benefits. This section states that:

The sum of the medical, rehabilitation and attendant care benefits paid in respect of an insured person who is not subject to the financial limit in subsection (1) shall not exceed, for any one accident, $65,000; or if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000.

11Section 18(5) of the Schedule states that:

For the purposes of subsections (1) and (3), medical, rehabilitation and, where applicable, attendant care benefits payable in respect of an insured person include all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person under this Regulation, other than,

(a) fees in connection with any examination required by an insurer under section 44; and

(b) expenses in respect of a report referred to in subsection 7(4). [Emphasis added]

12The wording in this section specifically states that it must be in connection with any benefit or payment. In my view, the catastrophic designation is not a benefit. Rather, it is a designation that gives the applicant access to a higher monetary limit should it be determined that the applicant has sustained a catastrophic impairment as defined in the Schedule.

13The applicant is relying on section 25(1)5 of the Schedule. This section states that the insurer shall pay the following expenses incurred by or on behalf of an insured person:

Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. [Emphasis added]

14It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. The fact that the legislature has included a ‘shall pay’ provision in section 25(1)5 of the Schedule for catastrophic assessments leads me to believe that it was not their intent to capture these assessments within the confines of section 18(5) of the Schedule.

15As noted above, section 18(5) of the Schedule clearly stipulates that medical, rehabilitation and attendant care benefits that are payable include all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person. The wording in this section explicitly excludes catastrophic assessments.

16In my opinion, the wording in section 25(1)5 of the Schedule does not give rise to any ambiguity. It is quite clear that catastrophic assessments are covered by section 25(1)5. Moreover, if the legislature intended catastrophic assessments to be captured by the limits in section 18(3)(a), the wording in section 18(5) would have reflected that.

17Therefore, I find that the applicant is entitled to payments in the amount of $16,272.00 for the catastrophic assessments.

Issues ii, iii and iv (Treatment plans)

18In order to be entitled to a medical benefit under the Schedule, the onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary (s.15).¹

19The applicant is seeking payments for physiotherapy and medication. However, the applicant has not advanced any evidence that proves on a balance of probabilities that the expenses are reasonable and necessary.

20Without any evidence, I am unable to make a determination regarding the applicant’s entitlement. The applicant has not met his onus.

21As such, the applicant is not entitled to payments for issues ii, iii and iv.

Issue v: Is the respondent liable to pay a special Award under s. 10 O. Reg 664?

22The applicant seeks a special award under s. 10 of the Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant.

23The applicant has not provided any submissions or evidence that proves that the respondent unreasonably withheld or delayed payments to him. Hence, I find that the applicant is not entitled to an award under s. 10 of the Ontario Regulation 664.

Issue vi: Interest

24The applicant is entitled to interest on any overdue payment of benefits.

CONCLUSION

25I order that the applicant is entitled to the cost of examinations in the amount of $16,272.00 for catastrophic assessments.

26I order that the applicant is not entitled to the claimed physiotherapy and prescription plans in dispute.

27I order that the applicant is not entitled to an award under s. 10 of O.Reg 664.

28I order that the applicant is entitled to any overdue interest.

Footnotes

1. 1Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 15