M.R. v. Allstate Insurance Company of Canada, 2020 CanLII 80282

Licence Appeal Tribunal

Citation: M.R. vs. Allstate Canada, 2020 ONLAT 18-012729/AABS

Released: September 23, 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:

M.R. Applicant

and

Allstate Insurance Company of Canada Respondent

DECISION AND ORDER ON PRELIMINARY ISSUES

ADJUDICATOR: Karina Kowal

APPEARANCES:

For the Applicant: M.R., Applicant

For the Respondent: Lisa Quan, Counsel Ian D. Kirby, Counsel

Heard: In person on October 10, 2019 with accompanying written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in four (4) accidents: January 23, 1991, September 24, 1996, December 3, 1996 and October 3, 2003. This preliminary issue hearing deals solely with the September 24, 1996 accident.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 (the ''Schedule''). ¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3Case conferences were held before Vice Chair Shapiro on June 5, 2019 and July 25, 2019 identifying the issues in dispute. At that time, the respondent raised preliminary issues. The parties were directed to a preliminary issue hearing (this hearing).

4The parties were further directed to contact the Tribunal upon of the release of this decision to schedule a case conference regarding the balance of the issues in dispute.

5The agreed upon issues in dispute for this preliminary hearing are (rephrased and regrouped from the case conference report and order for ease of reference):

a. Is the applicant barred from proceeding with the following benefits at the Licence Appeal Tribunal because these issues were captured by full and final releases executed by the applicant?

i. Is the applicant entitled to Attendant Care Benefits and Housekeeping/Home Maintenance Benefits for the period from 2010 to 2018?

ii. Is the applicant entitled to Attendant Care Benefits and Home Maintenance/Housekeeping Benefits in the amount of $60,450.72 for 2018?

iii. Is the applicant entitled to the cost of transportation to medical rehabilitation treatment in the total amount of $16,351.75 for the period 2009-2010? (issue listed in duplicate in the case conference report and order and will only be addressed once here)

iv. Is the applicant entitled to receive a rehabilitation benefit in the amount of $81,720.59 for home modifications and home devices, recommended by Deborah Prestwood, submitted on October 2, 2017 and denied on October 25, 2017?

b. Is the applicant prohibited from proceeding with the following benefits at the Licence Appeal Tribunal because it is time barred by the applicable limitation period?

i. Is the applicant entitled to receive a rehabilitation benefit in the amount of $81,720.59 for home modifications and home devices, recommended by Deborah Prestwood, OT submitted on October 2, 2017 and denied on October 25, 2017? (Same issue as paragraph [5] (a)iv))

6If the applicant is successful, she may proceed with the allowed issue(s) in dispute to the substantive hearing. If the insurer is successful at this preliminary issue hearing, the applicant will not be able to proceed with the issue(s) which were restricted from the proceedings.

RESULT

7The following issues in dispute are captured under full and final releases, duly signed by both parties, and are restricted from proceeding to the substantive hearing:

a. Attendant Care Benefits and Housekeeping/Home Maintenance Benefits for the period from 2010 to 2018

b. Attendant Care Benefits and Home Maintenance/Housekeeping Benefits in the amount of $60,450.72 for 2018

c. Transportation expenses in the amount of $16,351.75 for the period 2009-2010

8The following benefit is not captured under a full and final release, as it is considered a medical and rehabilitation benefit, nor is it time barred, as I have established that the effective denial date is October 25, 2017, and it is not restricted from proceeding to the substantive hearing:

a. Home modifications and home devices in the amount of $81,720.59 (dated September 14, 2017 and denied October 25, 2017)

I: ISSUES RELATED TO FULL AND FINAL RELEASES

9In December 2000, the parties participated in a private mediation during which the applicant’s statutory accident benefits claims were settled

“excepting only claims for supplementary medical or rehabilitation expenses incurred after December 5, 2000 as a consequence of the [applicant’s] motor vehicle accidents of September 24, 1996 and/or December 3, 1996.” The applicant duly signed the final release and written notices as prescribed the then settlement regulation.²

10Both parties include this full and final release in their evidence and do not dispute that it was duly executed. The applicant was then represented by counsel. The applicant currently alleges that the settlement agreement did not encompass attendant care benefits, home maintenance benefits, or transportation expenses.

The Law Regarding Settlements-Statutory Accident Benefits

11Pursuant to section 9.1(4) of Regulation 664 made under the Insurance Act, “the insured person may rescind the settlement within two business days after the later of the day the insured person signs the disclosure notice and the day the insured person signs the release.” ³

12To rescind a settlement, the insured person must also deliver written notice to the office of the insurer or its representative and return any money received by the insured person as consideration for the settlement.⁴

Application of the Law - Settlements

13There are two (2) settlement documents at issue. One settlement for the full and final release of all benefits excepting supplementary medical or rehabilitation expenses incurred after December 5, 2000 and another settlement for transportation expenses for the period September 24, 1996 to March 31, 2016. I will deal with each settlement below.

14The respondent states that the applicant neither rescinded the settlement within two business days of the later of an insured person signing the disclosure notice or the insured person signing the release document., The applicant did not deliver notice to the insurer rescinding either settlement nor did she return the funds to the insurer. The applicant did not deny this statement. Both settlement agreements were duly initialled on each page, dated and signed on the last page as required. I confirm that the settlement was valid.

Attendant Care and Housekeeping/Home Maintenance Benefits

15What may be confusing to the applicant is that no attendant care or housekeeping benefits were claimed to the date of the mediation. Also, no monies were allotted in consideration of “future” attendant care or housekeeping benefits in the settlement agreement. This may have left the applicant believing that she may still be able to claim this benefit under this date of loss. However, in signing the full and final release, the applicant gave up her right to claim all benefits other than medical rehabilitation claims incurred after December 5, 2000. This is clearly identified in the full and final release as well as written notice, signed by the applicant on December 19, 2000. The applicant was represented by counsel at the time. The written notice identifies:

“The effect of the said settlement is that you are permanently and forever giving up the right to mediate, litigate, arbitrate, appeal, apply to vary or proceed to Judicial Review in respect of the benefits which are subject to such settlement.”⁵

16As such, all attendant care and housekeeping/home maintenance benefits are restricted from proceeding at the Tribunal as such benefits were encompassed by the full and final release for the accident of September 24, 1996.

Transportation Expenses

17Although the full and final release dated December 19, 2000 did not encompass transportation expenses, a second full and final release was executed for all transportation expenses only for the period of September 24, 1996 to March 31, 2016 for a lump sum. This settlement agreement was also duly signed by the applicant on August 15, 2016 who was then also represented by counsel.⁶

18Before the Licence Appeal Tribunal, the applicant claims transportation expenses in the total amount of $16,351.75 for the period of 2009-2010 in order to get to medical rehabilitation treatment. She provides copies of cheques and an arrival/cancellation log in her evidence.

19Unfortunately, for the same reasons stated in the first full and final release (that the applicant neither rescinded the settlement or returned the funds., The time period for this claim (2009-2010) is captured by the second full and final release (1996-2016) and, thus, this issue also is restricted from proceeding further at the Tribunal.

Home Modification and Home Devices

20The issue in dispute regarding home modification and home devices in the amount of $81,720.59 is not captured by either full and final release as this benefit belongs under the category of benefits of “Rehabilitation Benefits” ⁷ and was specifically excluded from the full and final release for the date of loss September 24, 1996.

21This treatment plan is not restricted from proceeding at the Tribunal on the grounds that this rehabilitation benefit was not specifically excluded from the full and final release for the accident of September 24, 1996.

ii: iSSUES RELATED TO TIME LIMITATION

22An occupational therapy progress report dated April 11, 2019 by Deborah Prestwood, OT ⁸ provided by the applicant notes that an initial occupational therapy report was generated on August 19, 2010 by Ms. Geronimo, OT (note: Ms. Geronimo’s 2010 report was not provided by either party) in which home modification and assistive devices were recommended. Both parties are in agreement that the respondent refused payment for these services on November 19, 2010.

23The responding Insurer Examination dated November 11, 2010 by Danielle Wilson, OT⁹ addressed the home modifications and considered them not reasonable or necessary.

24The respondent provided the Explanation of Benefits dated November 19, 2010¹⁰ itemizing that “Home Renovations” claimed in the amount of $40,058.00 were payable in the amount of “$0.00”. The respondent also provided a list of some recommended home modifications and devices that the respondent was agreeable to fund at a reasonable expense. It is difficult to ascertain which home modifications were denied as the respondent did not itemize them.

25In the applicant’s occupational therapy report of September 7, 2017¹¹ Ms. Prestwood, OT re-evaluated the applicant and upheld the current need for home modifications and assistive devices from 2010. A new treatment and assessment plan (dated September 14, 2017) was submitted on September 17, 2017 with current price quotes for the home modifications and recommendations for new assistive home devices.

26This treatment plan was initially approved in full by the respondent on October 20, 2017 and then a retraction was issued denying the entire treatment plan. I do not have the retraction document from either party.

27The applicant’s occupational therapist wrote a letter to the Office of the Ombudsman dated December 4, 2017 regarding the insurer’s retraction of the approval.¹²

28I am in possession of the clarification letter that the respondent sent to the applicant dated June 20, 2018¹³ indicating that an occupational therapy insurer examination would be scheduled. Information in this letter cited that as the home modification requests are a duplicate of those requested in 2010, the occupational therapist will only address the newly proposed items. Further, housekeeping, home maintenance as well as attendant care would not be addressed at the occupational therapy insurer examination as these benefits were captured by a full and final release and the applicant has no entitlement to these benefits.

29It is unknown to me whether the applicant attended the occupational therapy insurer examination scheduled for September 13, 2018 as the report was not included by either party as evidence.

The Law regarding Time Limitation

30Section 56 of the Schedule ¹⁴ states that a proceeding shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.

The guiding case on limitation periods is the Supreme Court of Canada’s decision in Smith v. Co-Operators General Insurance Company.¹⁵ This case establishes that the two-year limitation period commences when the insurer notifies the applicant of its stoppage or refusal to pay a benefit. The refusal must be in writing, clear and unequivocal. The notice of a refusal to pay a benefit must also contain, in straightforward and clear language, directed to an unsophisticated person, a description of the dispute resolution process, such as the right to seek mediation, arbitration or litigation, and the relevant time limits governing the entire process.

Application of the Law – Time Limitation

31The respondent denied the treatment plan for home modification on November 19, 2010. I find that the Explanation of Benefits is not specific as it identifies “Home Renovations” as a whole denied amount of $40,058.00, and lists other allowable expenses for devices/modifications, without itemizing allowable costs. I was not able to corroborate prices between the explanation of benefits, the treatment plan, the applicant’s occupational therapy reports and the insurer examination occupational therapy report. I do not find that this meets the threshold for a “clear and unequivocal” denial as required in Smith v. Co-operators.

32Nonetheless, the issue revolves around the submission of the treatment plan dated September 14, 2017 by Deborah Prestwood, OT. The insurer initially approved the treatment in its entirety on October 23, 2017. Shortly thereafter, it denied the treatment plan issuing a retracting and denying the treatment plan on October 25, 2017. This is understandably confusing and distressing to a vulnerable insured.

33The applicant was reassessed by her occupational therapist in 2017 for her current needs. Her occupational therapist deemed that the recommendations from 2010 are still required along with new recommendations and as such the current treatment plan in dispute was submitted. The insurer denied the home modifications that were addressed in 2010 based on the insurer examination of 2010. An occupational therapy insurer examination was scheduled to only address newly added home modifications and assistive devices.

34I find that since the applicant was reassessed by her occupational therapist and a new treatment plan submitted, addressing her current needs, this treatment plan should be considered as a new treatment plan, and in its entirety.

35The insurer initially approved and then rescinded its approval on October 25, 2017. On June 20, 2018, the insurer informed the applicant that an occupational therapy assessment would be arranged for September 13, 2018 to assess only the newly added items in the treatment plan (not included in 2010).

36The insurer should have evaluated the entire treatment plan in consideration of her current needs, as her medical needs may have changed over time, especially over a 7-year period. This is the reason why the Schedule provides for both parties to continue to perform repeated assessments and submit treatment plans for ongoing goods, services and benefits due a possible progression or improvement of impairment of the claimant.

37This preliminary issue hearing is not to determine whether the applicant is entitled to the home modifications and/or assistive devices submitted in the treatment plan dated September 14, 2017, rather, it is to determine whether this issue can proceed to determine entitlement because it is not restricted by the 2-year time limitation from the date of denial.

38The respondent’s approval then denial was not clear and unequivocal. Their retraction based on an insurer examination which was 7 years old did not take into consideration that the applicant’s current medical needs may have changed. The respondent should have, at the least, assessed the applicant’s requirement for all the goods and services listed in the treatment plan.

39I hold that the effective denial date for the treatment plan in dispute is October 25, 2017.

40The applicant commenced an application with the Licence Appeal Tribunal on December 18, 2018.¹⁶

41The applicant is not statute barred from proceeding with her claim for home modifications and devices as set out in the treatment plan dated September 14, 2017 by Deborah Prestwood, OT in the amount of $81,720.59 and denied on October 25, 2017. The applicant had until October 25, 20219 to file an appeal with the Licence Appeal Tribunal for this treatment plan, which she had done.

CONCLUSION

42For the reasons outline above, I find that:

a. The following issues in dispute are captured under full and final releases, duly signed by both parties, and are restricted from proceeding to the substantive hearing:

i. Attendant Care Benefits and Housekeeping/Home Maintenance Benefits for the period from 2010 to 2018,

ii. Attendant Care Benefits and Home Maintenance/Housekeeping Benefits in the amount of $60,450.72 for 2018,

iii. Transportation expenses in the amount of $16,351.75 for the period 2009-2010.

b. The applicant is not prohibited by virtue of a full and final release for date of loss September 24, 1996, from proceeding with her claim for home modifications and home devices, in the amount of $81,720.59 as this benefit was not captured by this full and final release, and specifically excluded.

c. The applicant is not time barred from proceeding with her claim for home modifications and devices as set out in the treatment plan dated September 14, 2017 by Deborah Prestwood, OT in the amount of $81,720.59 and denied on October 25, 2017. The applicant had until October 25, 2019 to file an appeal for this treatment plan, which she had done.

Footnotes

1. 1Reg. 776/93 -Revoked July 3, 2020.
2. 2Full and final release and written notices concerning September 24, 1996 and December 3, 1996 accidents signed December 19, 2000.
3. 3Reg.664, s.9.1(4) of the Insurance Act
4. 4Reg.664 s.9.1(7) of the Insurance Act
5. 5Written notice regarding settlement of accidents September 24, 1996 and December 3, 1996, signed December 19, 2000.
6. 6Full and final release for transportation expenses from September 24, 1996 to March 31, 2016
7. 7Statutory Accident Benefits Schedule -O. Reg. 776 – Supplementary Medical Benefits s.36(1) (g)
8. 8Occupational therapy progress report dated April 11, 2019 by Deborah Prestwood, OT
9. 9Occupational therapy insurer examination dated November 11, 2010 by D. Wilson, OT
10. 10Explanation of Benefits dated November 19, 2010
11. 11Occupational therapy report dated September 7, 2017 by Deborah Prestwood
12. 12Letter to Ombudsman dated December 4, 2017 from D. Prestwood, OT
13. 13Clarification letter dated June 20, 2018 from Allstate to applicant
14. 14S.56 of the Schedule
15. 15Smith v. Co-Operators General Insurance Company, 2002 SCC 30
16. 16Application by an Injured Person for Auto Insurance Dispute Resolution dated December 18, 2018