Licence Appeal Tribunal
Tribunal File Number: 19-001973/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.G.
Applicant
and
AVIVA INSURANCE CANADA
Respondent
DECISION
ADJUDICATOR:
Kimberly Parish, Adjudicator
APPEARANCES:
For the Applicant:
Jay G. Meunier
For the Respondent:
Alex Robineau
HEARD:
In Writing on: November 25, 2019
OVERVIEW
1The applicant was injured in an automobile accident (“accident”) on February 5, 2016 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”)1. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2The dispute between the parties forming the basis for this hearing involves the applicant’s claim for costs and an award pursuant to s. 10 of the Automobile Insurance Act, R.R.O. 1990, Ontario Regulation 664 (“Ontario Regulation 664”). This relates to two invoices submitted to the respondent for medical cannabis.
ISSUES
3The issues in dispute for this hearing are:
(i) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
(ii) Is the applicant entitled to an award for costs under Rule 19 of the Tribunal Rules?
Applicant’s Position
4The applicant submitted that the information requested in the respondent’s request letter dated December 21, 2018 relating to the claim for medical cannabis was unreasonable. The applicant also submitted the respondent withheld or delayed payment of benefits to the applicant when the applicant submitted their expense claim forms (OCF-6’s) dated December 4, 2018 and January 8, 2019.
Respondent’s Position
5The respondent’s position is that it did not withhold or delay payment to the applicant for the two invoices for medical cannabis as the respondent was awaiting a prescription note outlining the information requested within the respondent’s December 21, 2018 letter.
RESULT
6Based on the evidence before me, and on a balance of probabilities, I find that:
(i) The applicant is not entitled to an award under s. 10 of Ontario Regulation 664.
(ii) The applicant is not entitled to its claim for costs pursuant to Rule 19.1 of the Tribunal Rules.
ANALYSIS
Did the respondent unreasonably withhold or delay payment of benefits?
7I do not find the respondent’s request for information through its letter dated December 21, 2018 was unreasonable. I also do not find that the respondent withheld or delayed payment of benefits to the applicant for the two invoices submitted by the applicant, dated December 4, 2018 and January 8, 2019.
8The respondent advised the applicant through an explanation of benefits (EOB) dated November 2, 2018 that the respondent would no longer continue to fund medical cannabis submitted on an OCF-6 without a proper medical note from the treating doctor outlining the need for cannabis and how it relates to the applicant’s accident related injuries. The letter further noted the medical confirmation was being sought in accordance with s. 33 of the Schedule. In response, the applicant submitted an OCF-6 dated December 4, 2018 and a receipt for medical cannabis in the amount of $542.40. An expense for an invoice from Bodystream in the amount of $200.00 was also being claimed as part of this OCF-6. The expenses were denied by the respondent in its EOB dated December 17, 2018 which noted the respondent required a proper medical note from the treating doctor indicating the need for medical cannabis and how it relates to the accident-related injuries.
9On December 17, 2018, the applicant provided a letter to the respondent from Dr. N. Kalyniuk, dated November 21, 2018. The letter noted medical cannabis was being prescribed for the applicant’s accident-related injuries. The applicant submitted that this letter satisfied the request made within the respondent’s November 2 and December 17, 2018 letters. I accept the applicant’s submission.
10A letter dated December 21, 2018 from the respondent was sent to the applicant advising further information was required before the December 4, 2018 OCF-6 could be funded. The requested additional information included: the applicant’s full name and date of birth, the address where the medical practitioner was consulted, daily grams of marijuana authorized for use, and the period of use (not to exceed one year from the date the medical document was signed), medical practitioner’s name and administrative information, and an attestation by the medical practitioner that the information within the document is correct and complete.
11In response, the applicant submitted a further OCF-6 dated January 8, 2019, which listed outstanding amounts for the medical cannabis in the amounts of $542.40 and $654.57. These expenses were denied by the respondent through an EOB dated January 30, 2019. The EOB noted the respondent had not received the medical note from the treating doctor outlining the need for cannabis and how it relates to the applicant’s accident related injuries. I already found that this information was provided to the respondent on December 17, 2018 through Dr. N. Kalyniuk’s November 21, 2018 letter. However, I find there was information requested in the respondent’s December 21, 2018 letter which remained outstanding.
12On January 31, 2019, medical documentation was faxed from Bodystream to the respondent. This medical documentation satisfied the information requested by the respondent in its December 21, 2018 letter. The respondent sent a cheque to the applicant on February 26, 2019 in the amount of $1,196.97, which was for the amounts requested for the medical cannabis submitted on the OCF-6 dated January 8, 2019.
13The applicant submits that the December 21, 2018 letter from the respondent was not reasonably required to determine the applicant’s entitlement to medical cannabis which had been previously prescribed. The applicant submits the respondent has unreasonably withheld or delayed payment of benefits claimed in the December 4, 2018 and January 8, 2019 OCF-6’s. The applicant further submits that the clinical notes and records (“CNRs”) of Bodystream, the treating clinic and issuer of the prescription for medical cannabis, were provided to the respondent on or about July 26, 2018, and these CNRs contained the necessary information with the exception of the attestation by the medical practitioner and the daily dose of dried marijuana authorized for use and the period of use. The applicant also submits the daily dosage and prescription expiry could be found on the cannabis order receipts submitted with the OCF-6’s, and the cannabis could not have been purchased without a prescription from a medical doctor.
14The respondent concedes Dr. Kalyniuk’s November 21, 2018 letter confirmed the applicant continued to require the assistance of medical cannabis; however, that letter did not provide any information concerning the dosage or recommended usage of the drug. I agree with the respondent’s submissions. The respondent issued a letter dated December 21, 2018 to clarify its request for information. The respondent submits that, as medical cannabis was a newly legalized drug, it recognized that there is a potential for abuse. As a result, the respondent submits that it wanted confirmation of the daily dosage amount, the period of usage and that it was further supported by an expert in the medical field.
15The applicant is correct that the receipts submitted with the OCF-6’s contain some of the information sought by the respondent. However, it did not contain all the information sought by the respondent in its December 21, 2018 letter. For example, the order receipts did not contain: the applicant’s date of birth, the address where the medical practitioner was consulted, the medical practitioner’s administrative information, and it did not contain an attestation from the medical practitioner.
16I find the November 2 and December 4, 2018 EOB letters sent to the applicant were unclear in noting specifically what the respondent required to fund the OCF-6 expenses for the medical cannabis. However, I find the respondent did clarify their request for information as noted within its December 21, 2018 letter, which I find to be reasonable pursuant to s. 33 (1) 1 of the Schedule for the following reasons:
(i) Although the applicant had been previously prescribed medical cannabis by Bodystream in July 2018, this does not mean that all invoices for medical cannabis submitted after that time period from this provider are to be automatically approved and funded by the respondent. The November 2 and December 17, 2018 EOB letters from the respondent acknowledged a proper medical note for the medical cannabis was required for the respondent to consider funding it, and I accepted that Dr. Kalyniuk’s November 21, 2018 letter confirmed the applicant was being prescribed medical cannabis for his accident-related injuries. I do not find Dr. Kalyniuk’s November 21, 2018 letter provided all the information sought by the respondent as identified within its December 21, 2018 letter. I find the December 21, 2018 letter clarified the specific information the respondent was seeking. Therefore, I find the December 21, 2018 letter which requested the details of the prescription including the quantities of the drug and its intended use was a reasonable request to assist in determining whether to fund the medical cannabis;
(ii) The medical documentation form from Bodystream was a pre-populated form with information required by the respondent’s December 21, 2018 letter. I find this evidence supports that Bodystream utilizes the fields contained within this form when dispensing medical cannabis. Therefore, I find it reasonable that the respondent exercised due diligence in clarifying their request for further information as noted within their December 21, 2018 letter;
(iii) The July 2018 CNRs from Bodystream were not produced for the hearing so I am unable to address their content. However, the applicant conceded in its submissions that the CNRs did not contain an attestation by the medical practitioner. I find the respondent’s December 21, 2018 letter was reasonable as this information was not previously provided and I find the respondent required this information to assist them in determining if the applicant’s request to fund the medical cannabis was reasonable; and
(iv) This is also pursuant to s. 38 (2) (c) (i) of the Schedule which requires an insurer to pay for reasonable and necessary expenses as a result of the impairment sustained by the insured person for drugs prescribed by a regulated health professional.
17Ideally, the respondent should have identified in its November 2, 2018 EOB letter, all the specific information it required from the applicant in order to obtain funding for the medical cannabis. The same information was essentially re-iterated in the respondent’s December 17, 2018 EOB letter. This resulted in the applicant not being advised of the specific information required by the respondent in order to obtain funding for the medical cannabis. However, I do not find this equates to the respondent unreasonably withholding or delaying payments to the applicant for the medical cannabis. On December 21, 2018, the respondent issued a new letter which clearly outlined the specific information the respondent required. Once the respondent received the medical documentation from Bodystream on January 31, 2019, which contained all the information, including the attestation by the medical practitioner, the respondent funded the applicant the OCF-6 amounts within 30 days. As a result, I do not find the respondent delayed payment to the applicant for these two OCF-6s.
18The applicant further submitted the respondent initially denied a prior claim for medical cannabis on July 16, 2018 as it was not submitted on a treatment plan. I do not find this expense pertains to the issues in dispute and is therefore not properly before the Tribunal to consider as part of the applicant’s claim for an award.
19The applicant relies on the Ontario Court of Appeal’s decision in Morgan Stegenga v. Economical Mutual Insurance Company2 to determine whether a benefit has been unreasonably withheld or delayed: what benefits were due and when and was the insurer’s conduct in withholding or delaying the benefit unreasonable. In the case before me, the respondent did not provide payment for the medical cannabis within 30 days of receipt of the applicant’s OCF-6s and accompanying invoices. However, I do not find a delay existed in providing this payment as the respondent advised the applicant in its November 2, 2018 EOB that it would no longer continue to fund medical cannabis without a proper medical note. Based on the chronology of events and analysis I have noted above in paragraphs 8 through 16, I find the respondent has not delayed or withheld payment of benefits to the applicant.
20I have reviewed the further case law/jurisprudence3 submitted by the applicant but I do not find it was helpful in supporting the applicant’s position.
21The applicant has not provided any submissions on its claim for costs. Therefore, I find the applicant is not entitled to its claim for costs.
CONCLUSION
22I order that the applicant is not entitled to an award under s. 10 of Ontario Regulation 664. The applicant is not entitled to its claims for costs pursuant to Rule 19.1 of the Tribunal Rules. The applicant’s claim is dismissed.
Released: March 19, 2020
Kimberly Parish
Adjudicator
b) McKnight v Guarantee Co of North America, [2003] OFSCD No 161. This case not on point and addressed information reasonably required by an insurer to assess an attendant care benefit.
c) R v Handy, 2002 SCC 56. Case not analogous. Criminal sexual assault case
d) Govedarica v General Accident Assurance Co of Canada, [1998] OJ No 4011. “Nature of information” interpreted to mean specific information pursuant to s. 33 (1) 1 request.
e) Benjamin v Belair Insurance Co, [2010] OFSCD No 100. What information is reasonably required by an insurer to determine entitlement to benefits.
f) 17-006757/AABS v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT). Not on point. Insurer ignored medical evidence for a significant period which resulted in failing to remove applicant from Minor Injury Guideline.
Footnotes
- O. Reg. 34/10
- Morgan Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, at para 47
- a) 16-003144 v. Cumis General Insurance Company, 2017 CanLII 22315 (ONLAT). This case not on point. Addressed a s. 44 request involving attendance at an insurer’s examination