RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Tribunal File Number: 19-007890/AABS
Case Name: Chien Van Nguyen v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Moninder Khattra, Counsel
OVERVIEW
1The applicant requests reconsideration of a decision dated October 5, 2021 (the “decision”). In the decision, the Licence Appeal Tribunal (the “Tribunal”) found that the applicant was only entitled to claim medical and rehabilitation benefits within the $3,500.00 Minor Injury Guideline limit.
2In the decision, the Tribunal also found that the respondent denied a treatment plan for $2,600.00 for chiropractic, massage, and acupuncture treatment (“the $2,600.00 treatment plan”) 11 days after receiving it, contrary to s. 38(8) of the Schedule. However, the Tribunal held that the respondent was not required to pay for the goods and services proposed in that plan. This is because the ‘shall pay’ provision in s. 38(11) only applies to expenses incurred between the 11th day after receipt of a plan and the date that proper notice for the denial is issued. Because no expenses were incurred in that period, and because the Tribunal found the expenses not reasonable and necessary as a result of the accident, the respondent is not liable to pay for them.
3The applicant seeks reconsideration on the grounds that the Tribunal misapplied s. 38(11) of the Schedule, erring significantly in law. The applicant seeks an order for the payment of the $2,600.00 treatment plan.
RESULT
4The request for reconsideration is denied.
ANALYSIS
5The grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:
i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
ii. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
iv. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6The applicant’s reconsideration request is based on the second of the four criteria, namely that the Tribunal erred in law and would have reached a different conclusion on the respondent’s liability for the treatment plan had it not so erred.
No error in the Tribunal’s interpretation and application of s. 38(11)
7In its hearing submissions, the respondent conceded that it denied the $2,600.00 treatment plan on the 11th business day after receiving it, exceeding the timeframe set out under s. 38(8) of the Schedule by one business day. The parties agreed that on these facts, the consequences set out in s. 38(11) of the Schedule apply:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
8The first consequence for failing to comply with the timeline for notice is unconditional: the insurer may not take the position that the Minor Injury Guideline applies.
9At the hearing, the applicant argued, unsuccessfully, that where s. 38(11) applies, the insurer is prohibited from taking the Minor Injury Guideline position in respect of the entire application, not just the treatment plan to which the deficient notice relates. The applicant appears to have abandoned this position in his reconsideration submissions, as he only seeks an order for payment of the $2,600.00 treatment plan, and not the other treatment plans which the Tribunal found not payable for exceeding the Minor Injury Guideline limit.
10As the Tribunal noted at para. [29] of the decision, the interpretation advanced by the applicant at the hearing was rejected by the Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada [Zheng].1 Without seeking a redetermination of the other issues that were disputed at the hearing, the applicant submits in his request for reconsideration that the Divisional Court’s recent ruling in Kyrylenko v. Aviva Insurance Canada [Kyrylenko], (decided after submissions were filed in this matter) reverses the court’s prior jurisprudence on s. 38(11), including Zheng. I find it necessary to clarify the relationship between Zheng and Kyrylenko and to discuss their significance in the context of the present dispute.
11Kyrylenko is not a clear reversal of Zheng. In Kyrylenko, the court describes the first consequence in s. 38(11) for non-compliance as “preclud[ing] the insurer from relying on the minor injury guideline in responding to the claim by the appellant” [emphasis added].2 Although the term “claim” creates some ambiguity, (it could mean the specific claim for a benefit to which the late denial relates, the entire accident benefits claim, or the complete Tribunal application), in my view, properly understood, the court’s reference to “the claim” in Kyrylenko refers to a specific claim for a benefit or issue in dispute, not all benefits claimed by the applicant or the entire application before the Tribunal.
12Read this way, Kyrylenko is consistent with the holding in Zheng that the s. 38(11) consequences apply to the “costs under the Treatment Plan in question” [emphasis added]. If the court intended to disavow its prior case law on the scope of s. 38(11)1., expanding the prohibition to include not just the specific treatment plan affected by the late denial but the entire application, it would have done so clearly and unequivocally.
13The applicant also relies on Kyrylenko for his submission that the Tribunal erred in conducting a reasonableness and necessity analysis in relation to the $2,600.00 treatment plan. The applicant’s submissions fail to consider the language of s. 38(11) holistically and fundamentally misapprehend the court’s reasoning in Kyrylenko. In that case, the notices in question were issued some 48 days after the insurer received the treatment plans. In the present case, the denial notice was issued on the 11th day post-submission.
14The mandatory “shall pay” language in s. 38(11)2. is for expenses “that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)” [emphasis added]. Here, the ‘shall pay’ period began to run on the same day that the insurer cured the deficiency of its notice. In other words, while the first rule in s. 38(11) is clearly engaged on these facts, (the respondent is barred from taking the Minor Injury Guideline position in respect of the treatment plan), the second rule has no practical effect because the ‘shall pay’ period ended the day it began.
15The court in Kyrylenko held that it was unnecessary for the Tribunal to engage in a reasonableness and necessity analysis because s. 38(11) does not require one.3 The circumstances of this case differ. Here, the ‘shall pay’ period ended the day it began, and any expenses incurred under the treatment plan escape the mandatory language in s. 38(11).
16In my view, where the respondent is barred from taking the Minor Injury Guideline position in respect of a treatment plan (under the first rule) and where the mandatory payment period ends before expenses are incurred (under the second rule), it is remains necessary to evaluate whether the goods and services proposed in the treatment plan are reasonable and necessary as a result of the accident under s. 15 of the Schedule. Failing to conduct such an analysis would lead to an absurd result: it would relieve the applicant of their onus to prove entitlement to a benefit long after the insurer’s penalty period had ended. In effect, it would nullify the language in the provision that imposes an end date “on the day the insurer gives a notice described in subsection (8)”.
17Section 38(11) is clear as to the insurer’s liability to pay for services incurred during the ‘shall pay’ period – there, an analysis of whether the applicant has underlying entitlement to the benefit is unnecessary. However, for expenses incurred outside that period, (including those in dispute in this matter), the Minor Injury Guideline does not apply, and a s. 15 reasonable and necessary analysis is called for.
18For these reasons, the applicant has failed to establish grounds for reconsideration and the request is dismissed.
CONCLUSION
19The request for reconsideration is dismissed.
Theresa McGee
Vice-Chair
Licence Appeal Tribunal
Tribunals Ontario
Released: November 2, 2021
Footnotes
- 2018 ONSC 5707.
- Kyrylenko at para. 16.
- Kyrylenko at para. 13.