Released Date: 11/05/2020
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:
P.K.
Applicant
and
Coseco Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Melissa Miller, Counsel
For the Respondent:
Sharla B. Bandoquillo, Counsel
Heard By Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1P.K. (“applicant”) was involved in an automobile accident on September 18, 2016 (“accident”) and sought benefits from Coseco Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2The applicant was denied benefits by the respondent and she submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3It is undisputed that the applicant is not in the Minor Injury Guideline (“MIG”) and has not been found to be catastrophically impaired.
4It is undisputed that the applicant does not have access to optional benefits.
5It is also undisputed that given the applicant’s policy renewal date, the pre-June 1, 2016 Schedule applies with respect to the monetary limit of $50,000.00 in s. 18(3).2
ISSUES
6In the Tribunal’s case conference Order, the issues to be decided were:
i. Is the applicant entitled to receive medical and rehabilitation benefits for physiotherapy services, recommended by Sunnybrook Health Sciences Centre-Ambulatory Care (“Sunnybrook”, submitted by OCF-21 on January 17, 2019, and denied by the respondent on February 14, 2019 (“disputed treatment plans”) as follows:
a. in the amount of $150.00?
b. in the amount of $797.00?
c. in the amount of $3,247.70?
d. in the amount of $1,682.45?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,328.20 for transportation services, submitted December 22, 2016, and denied by the respondent on February 14, 2019? 3
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payment of a benefit?
RESULT
7I find that the applicant is not entitled to the disputed treatment plans. Issue ii is not in dispute at this hearing and is not determined by me. No interest is payable. No award is made. The applicant’s application is dismissed.
LAW
8Section 18(3) of the pre-June 1, 2016 Schedule provides that the sum of medical, rehabilitation and attendant care benefits paid in respect of an insured who is not subject to the MIG shall not exceed, for any one accident, $50,000.00.
9Section 38(15) provides that an insurer shall pay for goods and services it has agreed to pay for in the notice under subsection (8) or (14), or is required to pay for, within 30 days after receiving an invoice for them.
ANALYSIS
Positions of the Parties
10The applicant submits that the reasonableness and necessity for the disputed treatment plans is not in dispute because the respondent agreed to pay for them. The applicant relies on s. 38(15) of the Schedule.
11The respondent did not dispute the applicant’s submission regarding reasonableness and necessity for the disputed treatment plans. However, the respondent denies it agreed to pay more than $50,000.00 for medical and rehabilitation benefits and relies on the $50,000.00 cap in s. 18(3) of the Schedule.
12The payments claimed by the applicant are balances owing on several treatment plans approved by the respondent and invoiced by Sunnybrook some months after the services had been consumed by the applicant. The real issue between the parties is whether the respondent agreed to pay for the disputed treatment plans or is otherwise required to pay them even though such payment would exceed the $50,000.00 cap in the Schedule.
13I find that the applicant is not entitled to payment of the disputed treatment plans for the following reasons.
14Firstly, I find that there was no unqualified agreement by the respondent to pay for the disputed treatment plans. To the contrary, the correspondence between the parties demonstrates that the respondent cautioned the applicant that it would not fund medical and rehabilitation treatment in excess of the statutory limit of $50,000.00 several times and that unprocessed invoices may affect the total. Although the applicant argues that the respondent agreed to pay for the disputed treatment plans and therefore is required to pay by s. 38(15) despite the $50,000.00 cap on funding in s. 18(3), the evidence does not support this.
15The applicant submitted the respondent’s February 14, 2019 correspondence denying payment of the disputed treatment plans because the applicant had incurred the maximum policy limit for non-catastrophic impairments of $50,000.00 for medical and rehabilitation expenses but there is relevant earlier correspondence which the respondent filed.
16The OCF-21s show that the applicant was incurring the disputed treatment plans between February and June, 2018:
a. $150.00 claimed was consumed by February, 2018
b. $797.00 claimed was consumed between February and May, 2018
c. $3,247.70 claimed was consumed between February and June, 2018
d. $1,682.45 claimed was consumed between May and June, 2018
17In this time frame, the respondent cautioned the applicant about the cap on funding. By letter dated May 2, 2018, the respondent wrote to the applicant that it had “…agreed to pay for the goods and services described” but qualified its approval by adding, “Despite the approval given, overall medical rehabilitation and assessment/examination payments cannot exceed $50,000.” By correspondence dated July 19, 2018, the respondent approved a total of $3,014.23 treatment expenses but again qualified its approval by adding, “We would like to remind you that there is currently $8,186.99 remaining of the $50,000 limit. Please note that the amount actually remaining under the $50,000 limit may be impacted by other expenses not yet submitted or processed…Despite the approval given, overall medical rehabilitation and assessment/examination payments cannot exceed $50,000.” By correspondence dated August 8, 2018, the respondent confirmed, “You have incurred the maximum policy limit for non-catastrophic impairments which is $50,000 for medical/rehabilitation benefits…As a result there is no funding available under the policy for these expenses”. The respondent’s February 14, 2019 correspondence is to the same effect. The applicant’s counsel was copied with these letters.
18Based on the correspondence sent by the respondent to the applicant, I find that there was no unqualified agreement by the respondent to pay more than the $50,000.00 statutory cap. As a result, s. 38(15) does not apply.
19Secondly, the fact that Sunnybrook did not invoice the respondent for some of these services until months after they were consumed does not obligate the respondent to pay more than $50,000.00 in total.
20Thirdly, the applicant argues that the respondent is in a better position than the applicant to keep track of how much of the funding had been expended and bore the responsibility to “make sure treatment was not being incurred beyond the monetary limit, especially where the respondent agreed to pay for treatment beyond that monetary limit”. I find this argument unpersuasive. I have found that there was no agreement to pay beyond the $50,000.00 limit based on the evidence before me. Further, the applicant was in a better position than the respondent to know how much of the $50,000.00 had been expended because she was the one consuming the services and could simply have told Sunnybrook about the cap on funding or asked Sunnybrook to confirm the cost as services were consumed.
21Lastly, the applicant argues that, as a matter of law, the respondent is required to fund the disputed treatment plans despite the $50,000.00 cap on funding in s. 18(3) because the Schedule is consumer protection legislation, the insurance contract should be construed broadly and when there is ambiguity in the insurance contract the doctrine of contra proferentum applies. I find the applicant’s legal arguments unpersuasive.
22Although the Schedule has been referred to as consumer protection legislation and is sometimes construed broadly in favour of an applicant, these general doctrines cannot override the clear provisions of s. 18(3).
23Further, the applicant did not put forward any legal precedent establishing that an insurer is required to fund amounts greater than the statutory cap in s. 18(3) because the applicant has incurred these amounts.
24The wording of s. 18(3) is clear and unambiguous. Accordingly, there is no scope for a contra proferentum argument as there is no ambiguity.
25Although the insurance contract is between the parties, the $50,000.00 monetary limit is one prescribed by law, not a limit “chosen” by the respondent. There are exceptions to the $50,000.00 cap on medical and rehabilitation benefits for optional benefits or catastrophic impairment, neither of which apply here.
26Considering the totality of the evidence and the submissions made, I find that the applicant has not established she is entitled to the disputed treatment plans on a balance of probabilities.
Interest
27As no benefits are payable, no interest is payable.
Award
28Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As there are no benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there will be no award under Ontario Regulation 664.
ORDER
29For the reasons outlined above, I find that the applicant is not entitled to the disputed treatment plans. Issue ii is not in dispute at this hearing and is not determined by me. No interest is payable. No award is made. The applicant’s application is dismissed.
Released: November 5, 2020
Avril A. Farlam
Vice Chair
Footnotes
- O. Reg. 34/10.
- Applicant’s submissions for this hearing, para. 13.
- The respondent advises that issue ii is not in dispute. The applicant did not argue otherwise in reply and the applicant did not address ii in her submissions. Therefore I find issue ii is not in dispute at this hearing and will not be determined by me.