Released Date: 07/20/2020
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:
A. D.
Applicant
And
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Daniel Roncari, Counsel
For the Respondent:
Karen Klaiman, Counsel
HEARD:
By way of written submissions
OVERVIEW
1A. D. (the “applicant”) was involved in an automobile accident on February 26, 2011 and sought benefits from TD General Insurance Company (the “respondent”) 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”).
2The parties participated in a case conference, however were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES
3I have been asked to decide the following issues1:
(i) Is the applicant entitled to a cost of examination in the amount of $1,498.42 for an in-home attendant care assessment recommended by Darlene Gillanders in a treatment plan (OCF-18) submitted on June 2, 2018 and denied on June 8, 2018?
(ii) Is the applicant entitled to interest on overdue payment of benefits?
RESULT
4After reviewing the parties’ submissions and all the evidence I find the applicant is not entitled to the disputed treatment plan or interest.
ANALYSIS
5I find the applicant is not entitled to the treatment plan for the in-home attendant care assessment for the following reasons.
6Section 20(2)(a) of the Schedule states that no attendant care benefit (“ACB”) is payable for expenses incurred more than 104 weeks after the accident unless the insured person sustains a catastrophic impairment.
7The treatment plan submitted to the respondent on June 2, 2018, was authored by Darlene Gillanders, occupational therapist, and proposes funding for an in-home attendant care assessment in the amount of $1,498.42. The purpose of an attendant care assessment is to determine if an insured has any functional limitations that would impact their ability to independently engage in self-care and activities of daily living. Under the heading of “activity limitations,” the treatment plan states that the applicant’s accident related impairments impact her ability to carry out her employment and activities of daily living. The goal of the treatment plan was to carry out an assessment.
8On June 7, 2018, the respondent sent the applicant an explanation of benefits (“EOB”) denying the treatment plan on the basis that attendant care is not payable if expenses are not incurred within 104 weeks after the accident.
9Despite the respondent’s denial, the applicant proceeded with the in-home attendant care assessment and incurred the cost of same.
10The applicant argues that she is entitled to the in-home attendant care assessment as she still suffers from accident related physical and psychological symptoms that affect her ability to carry out her activities of daily living. She asserts that the test to determine her entitlement to the assessment is whether it is reasonable and necessary. The applicant submits that, although to date she has not applied for a catastrophic designation, this does not mean that she will not apply for one in the future. Further, if at a future point she is designated to be catastrophically impaired, she would have the right to claim retroactive attendant care benefits as per Ms. Gillander’s Form 1 (Assessment of Attendant Care Needs).
11The respondent’s position is that more than 104 weeks have passed since the accident. The applicant did not submit the treatment plan until June 2018. Since the accident occurred on February 26, 2011, and the applicant has not been designated to be catastrophically impaired, her right to apply for ACBs expired on February 26, 2013. Therefore, she is not entitled to the in-home attendant care assessment as s. 20(2) bars her from applying for an ACB after 104 weeks have elapsed. For the following reasons, I agree with the respondent.
12First, the applicant failed to submit any relevant case law or authority in support of her position that the Tribunal has jurisdiction to grant the relief sought. The applicant relied on the Tribunal’s decision in 16-001418 v. Aviva Insurance2, in support of her position that the in-home assessment is payable if it is determined to be reasonable and necessary. I do not find that this decision supports the applicant’s position in that it does not address entitlement to an in-home attendant care assessment post the 104-week mark. This decision simply sets out the criteria that that adjudicator applied when determining whether a treatment plan is reasonable or necessary. In my view, the applicant failed to articulate how this decision supports that the Tribunal has authority to grant funding for an in-home assessment when 104 weeks have elapsed and she has not sustained a catastrophic impairment. In addition, I agree with the respondent that the applicant did not specifically address how the criteria set out in this decision applies to the treatment plan in dispute.
13By contrast, I found the case law submitted by the respondent persuasive. The respondent relied on the Tribunal’s decision in S.M. v. Federated Insurance3; D.M v. Aviva Insurance4; and I.G. vs. Security National5 in support of its position that the applicant’s entitlement to an attendant care in-home assessment is barred pending a catastrophic determination. I found these decisions on point and relevant to the issue in dispute as they dealt with an insured’s right to attendant care or an attendant care assessment beyond the 104-week mark where there was no catastrophic designation. In all three decisions, the adjudicators determined that absent a catastrophic determination the Tribunal does not have jurisdiction to award ACBs post the 104-week mark, and that an in-home attendant care assessment is not reasonable or necessary as it is premature pending such a designation. While I am not bound by the Tribunal’s decisions, I agree with the adjudicators’ analyses and interpretation of s. 20(2)(a) of the Schedule.
14Finally, I find the fact that Ms. Gillander’s in-home attendant care assessment and Form 1 identified limitations with self-care and recommended monthly attendant care services irrelevant to the present analysis. The applicant is barred from claiming attendant care at the post-104 mark as she has not been designated to be catastrophically impaired. In my view, there is no provision in the Schedule to avoid this precondition.
15The applicant has not met her onus on a balance of probabilities in proving that the in-home attendant care assessment is payable under the Schedule. Since I have determined that this assessment is not reasonable or necessary the applicant is not entitled to interest.
ORDER
16For all of the above-noted reasons I order:
(i) the applicant is not entitled to the disputed treatment plan or interest.
(ii) the application is dismissed.
Released: July 20, 2020
Rebecca Hines
Adjudicator
Footnotes
- In her submissions the applicant confirmed that the treatment plan for assistive devices identified as an issue in dispute in the Tribunal’s case conference report and order was resolved in advance of the hearing.
- 16-001418 v. Aviva Insurance Canada, 2017 CanLII 69243.
- S.M. v. Federated Insurance Company of Canada, 2019 ONLAT 18-004533/AABS
- D.M v. Aviva Insurance Company, 2019 CanLII 51330
- I.G. vs. Security National Insurance Company, 2019 ONLAT 19-000292/AABS