Released Date: 10/07/2020
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:
J. O.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Gerald Sternberg, Counsel
For the Respondent:
Samuel Davies, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, J.O., was involved in an automobile accident on November 19, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). J.O. was denied certain benefits by the respondent, Aviva Insurance Company of Canada (“Aviva”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The issues before the Tribunal are both preliminary and substantive. The preliminary issues are based on whether J.O. is disentitled to the benefits due to non-compliance pursuant to s. 38(2), 49.1 and 64(7) of the Schedule.
3This case raises the question of whether a treatment provider, not licensed by Financial Services Commission of Ontario Guidelines (“FSCO Guidelines”), must still comply with FSCO Guidelines when seeking payment for treatment on behalf of a patient. It is agreed that the treatment provider in this case, Dr. Garvey, a chiropractor, is not registered with FSCO as a treatment provider. It is also agreed that Dr. Garvey submitted the treatment plans and expense claims at issue directly to Aviva and not through the central processing agency, HCAI.1 Aviva submits that the failure to comply with the procedures set out in the Schedule and FSCO Guidelines is fatal to J.O.’s claim for benefits. I agree.
4Aviva submits that J.O. is disentitled to the two treatment plans (“OCF-18s”) and the expenses claims (“OCF-21s”) in dispute because:
a. The treatment plans were incurred before being submitted to Aviva, contrary to s. 38(2) of the Schedule;
b. J.O. and Dr. Garvey failed to follow the mandatory procedural steps outlined in s. 64(7) of the Schedule for treatment plans prepared by an unlicensed treatment provider; and
c. The invoices for the treatment and expenses were not delivered to Aviva in accordance with the mandatory language of s. 49.1 of the Schedule.
5If I find that J.O. failed to comply with the requirements under the FSCO Guidelines and the Schedule, then there is no need to address the substantive issues. If I find that J.O. is in compliance, then I need to consider whether J.O. incurred the treatment prior to submitting the two OCF-18s. In addition, I need to consider whether J.O. is entitled to the out of pocket expenses.
6If I find that J.O. did not incur the treatment prior to submitting the two OCF-18s, then I need to determine whether the treatment was reasonable and necessary. Aviva submits that J.O. has not satisfied this onus.
ISSUES
Preliminary Issues
7The issues I am asked to consider are as follows:
a. Is J.O. entitled to his claim for benefits for failure to submit the two treatment plans (OCF-18s) in dispute through the procedures outlined in s. 38(2), 49.1 and 64(7) of the Schedule?
b. Is J.O. entitled to his claim for expenses in issue c below pursuant to s. 49.1, s. 56 and s. 64 of the Schedule?
Substantive Issues
8The issues I have been asked to determine are as follows:
a. Is the medical benefit in the amount of $3,200.00 for chiropractic treatment pursuant to an OCF-18 dated May 29, 2017, submitted on November 8, 2017, reasonable and necessary?
b. Is the medical benefit in the amount of $2,080.00 for chiropractic treatment pursuant to an OCF-18 dated December 19, 2018, submitted January 7, 2019, reasonable and necessary?
c. Is J.O. entitled to out of pocket expenses in the amount of $1,315.00 for prescription medication, parking and mileage submitted on January 7, 2019, and denied January 9, 2017?
FINDING
9Based on a review of the evidence, I find that J.O. has failed to comply with s. 38(2), s. 49.1 and s. 64 of the Schedule. J.O. is not entitled to any of the benefits claimed.
10Given my finding on the preliminary issues, I need not address the substantive issues.