Citation: N.P. vs. Western Assurance Company, 2020 ONLAT 19-011629/AABS & 19-012841/AABS

Released Date: 08/10/2020

19-012841/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:

N.P.

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Charles E. Gluckstein

Gabriel Lessard

For the Respondent:

Lora Castellucci

HEARD:

Via written submissions

OVERVIEW

1N.P. sustained significant injuries as a result of an accident that occurred on November 24, 2013. On February 28, 2014, the respondent, Western, accepted that N.P. was catastrophically impaired and benefits were provided pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'') ever since.

2In an explanation of benefits letter dated May 23, 2014, Western notified N.P. that, based on a s. 44 occupational therapy report, she was no longer eligible for attendant care benefits (“ACBs”) and housekeeping benefits (“HKs”). In July 2014, N.P. applied to FSCO to arbitrate her eligibility to these benefits.

3The parties achieved and entered into a “Partial Final Release” dated July 1, 2016. Notably, the partial settlement governed entitlement to ACBs and HKs “only to June 28, 2016.”

4Fast forward to October 30, 2019 when N.P. submitted a treatment and assessment plan in the amount of $1,459.16 for costs associated with an in-home reassessment of ACBs and HKs. In an explanation of benefits letter dated November 11, 2019, Western denied the claim because the benefits were previously terminated, were statute-barred under s. 56 as a result and, under s. 38(8), the assessment was not reasonable and necessary.

5At the case conference in March 2020, the Tribunal consolidated two active claims that N.P. was pursuing, being 19-011629/AABS and 19-012841/AABS, into this single claim. After discussions, N.P. withdrew two of the issues in dispute, leaving one remaining issue for this written hearing.

ISSUES IN DISPUTE

6The following issue is the sole issue remaining in dispute:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,459.16 for an in-home occupational therapy assessment recommended by Annamarie McDonough in a treatment and assessment place submitted on October 30, 2019 and denied on November 11, 2019?

result

7I find N.P. is entitled to payment for the OCF-18 in the amount of $1,459.16 for the in-home occupational therapy assessment as it is reasonable and necessary.

ANALYSIS

The positions of the parties

8N.P. submits that she has ongoing physical, psychological and cognitive impairments that continue to affect her activities of daily living and work life. To that end, and on the basis of letters and an OCF-18 from her occupational therapist, Ms. McDonough, she submits that she is not statute-barred from securing an updated assessment of attendant care needs under s. 56 of the Schedule. N.P. submits that the partial settlement agreement entered into by the parties on July 1, 2016 explicitly states that the settlement only covers ACBs and HKs until June 28, 2016 and that, under s. 42(9), she is entitled to submit a new ACB assessment at any time that there are changes that would affect the amount of benefits payable. Finally, N.P. argues that Western did not deny ACBs and HKs on May 23, 2014, as alleged, but rather on November 11, 2019 when the OCF-18 for the in-home assessment was submitted. In support of her argument, N.P. relies on the Court of Appeal decision in Tomec v. Economical¹ that determined discoverability applies, on s. 9.1 of O. Reg. 664 that governs settlement disclosure notices (“SDN”) and, in the alternative, s. 7 of the Licence Appeal Tribunal Act² that permits the Tribunal to extend the limitation period.

9In response, Western submits that the treatment plan in dispute is statute-barred under s. 56 because it denied ACBs and HKs on May 23, 2014 and N.P. did not dispute the denial within two years. In any event, Western submits that the in-home assessment is not reasonable and necessary under s. 38(8) because post-accident, N.P. has been able to attend university and graduate, gain and maintain employment independently, has travelled extensively, engages in home and food-related tasks and has achieved significant progress. Western asserts that the assessment is not payable under s. 42(9) either, because N.P. has not demonstrated that there have been “changes that would affect the amount of the benefits payable.” Western argues that the Partial Release did not waive the limitation period, that the lack of a SDN does not imply waiver, that the wording of the release does not state that future ACBs or HKs were available and that N.P. withdrew her appeal at FSCO. Further, Western submits that a partial release does not rescind a denial, that Tomec is distinguishable because N.P. was accepted as catastrophic three months after the accident and her ACB and HK claims cannot be said to have been discovered later on and, finally, that s. 7 of the LAT Act should not be applied because N.P. has not met the four factors to warrant an extension.

10I agree with N.P. and find it clear on the evidence that the Partial Release did not preclude her from future assessments of her ACB and HK needs and that she is not statute-barred from proceeding with her claim as a result. Further, I find the OCF-18 for an in-home assessment to determine her ongoing ACB and HK needs to be reasonable and necessary based on the information in evidence and agree that there may be changes that would affect the amount of the benefits payable to N.P. justifying an updated assessment under s. 42(9).

The Final Partial Settlement with no SDN

11Contrary to Western’s position that N.P. did not appeal its May 23, 2014 denial within two years, I find N.P. applied for arbitration at FSCO on July 8, 2014, with the intention to challenge Western’s determination limiting her future entitlement to ACBs and HKs as a catastrophically-impaired insured. As N.P. notes, instead of proceeding to a hearing on the merits, the parties resolved the dispute when they reached a Partial Final Settlement on July 1, 2016.

12On review of the settlement document, I find it clearly states, on numerous occasions in bold and underlined font, that the Partial Final Settlement was for “attendant care benefits and housekeeping and home maintenance benefits only to June 28, 2016.” Notably, the release does not indicate that N.P. was abandoning future claims for ACBs or HKs after June 28, 2016, that the release finally disposed of her entitlement to these benefits on an ongoing basis or that she was barred from securing a re-assessment for same in the future.

13Indeed, as N.P. submits, s. 9.1 of O. Reg. 664 requires an insurer to provide the insured with a SDN when a settlement permanently ends entitlement to one or more benefits. There was no SDN provided and, further, in an email between the parties dated June 29, 2016, Western asserted that “Since this is a partial settlement, there will be no Settlement Disclosure Notice” provided. In my view, this indicates that the Partial Final Settlement governed ACBs and HKs only to June 28, 2016, that the settlement did not permanently end N.P.’s entitlement to those benefits, that Western did not believe it permanently ended N.P.’s entitlement and that N.P., as a catastrophically-impaired insured, would be free to pursue entitlement to ACBs and HKs in the future as her circumstances and conditions changed, for better or worse.

14Accordingly, for these reasons, I find that Western cannot rely on the limitation period under s. 56 to statute-bar N.P.’s claim because the settlement did not permanently end her entitlement to benefits and clearly provides that N.P., as a catastrophically-impaired insured, would be entitled to re-assess her entitlement to ACBs and HKs after June 28, 2016 as her needs changed. In turn, the denial of the OCF-18 in dispute did not occur until Western sent N.P. the explanation of benefit letter dated November 11, 2019.

s. 42(9) and “changes that would affect the amount payable”

15I disagree with Western’s submission that s. 42(9) is not applicable because N.P. has not furnished evidence of changes that would affect the amount of ACBs and HKs payable. While N.P.’s progress has been impressive, given her accident-related impairments, it is to be expected that her attendant care needs will change over time and s. 42 places no limitations on the number of Form-1s or assessments so long as there is evidence of change. On review of Ms. McDonough’s Occupational Therapy Update Report letters from 2019 and 2020, the Case Management Reports from Ms. Dutchak at Rehab First and the Orthopaedic Assessment Report from Dr. Josefchak dated January 31, 2020, I find N.P. has provided enough medical evidence and opinion to prove on a balance of probabilities that she has experienced changes that would affect the amount of ACBs and HKs payable to warrant an update or reassessment of her needs. For example, she has lingering pain from surgery to her leg, she began a new job downtown, is required to sit at a desk all day, she regularly commutes via public transportation and often takes work home with her. In my view, it would be reasonable to determine if these changes require additional supports.

16While I am alive to Western’s submissions on N.P.’s day-to-day function, her ability to work and her extensive travels, her substantive entitlement to ACBs and HKs is not at issue here and I offer no determination on same. Rather, I simply find there is enough evidence of change that would affect the amount payable in order to justify payment for an in-home assessment to determine her needs. In any event, I agree that the basis for Western’s denial was not necessarily on the medical information available, but rather on a limitation period.

Is the OCF-18 reasonable and necessary?

17For the same reasons, I ultimately agree that the OCF-18 in the amount of $1,459.16 for an in-home occupational therapy assessment is reasonable and necessary. At six years post-accident and despite obvious progress from her catastrophic injuries, I agree that it would be prudent to determine N.P.’s current and ongoing ACB and HK needs, if any. Ms. McDonough has consistently provided services to N.P. and her correspondence, even though it is based on subjective reporting, indicates that N.P. may need some assistance in her daily activities despite being largely independent. In the grand scheme of a catastrophic file and the costs associated with same, the total amount of this OCF-18, comprised of $299.60 for the assessment, $779.46 for documentation and a report, $200 for the OCF-18 and $179.88 for transportation is reasonable in order to gauge N.P.’s current needs. Western did not dispute the individual costs of the items in the assessment but argued that it was not reasonable and necessary based on the evidence of N.P.’s progress. Accordingly, I accept that the costs proposed to investigate N.P.’s needs at this stage are reasonable and that the assessment is necessary to determine her current ACB and HK needs. I find N.P. is entitled to payment in the amount of $1,459.16 for the OCF-18 for an in-home assessment as it is reasonable and necessary.

CONCLUSION

18N.P. is entitled to payment for the OCF-18 in the amount of $1,459.16 for the in-home occupational therapy assessment as it is reasonable and necessary.

Footnotes

1. 12019 ONCA 882.
2. 21999, S.O. 1999, c.12, Sched. G. ["LAT Act"].