Amar Majeed v. Aviva General Insurance Company, 2021 CanLII 127466

Licence Appeal Tribunal

Citation: Majeed v. Aviva General Insurance Company, 2021 ONLAT 20-004520/AABS

RECONSIDERATION DECISION

Before: Craig Mazerolle, Adjudicator

Licence Appeal Tribunal File Number: 20-004520/AABS

Case Name: Amar Majeed v. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Seema Passi, Paralegal

For the Respondent: Leanne Zabudsky, Counsel

BACKGROUND

1Due to injuries sustained from an accident on September 20, 2017, the applicant sought accident benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).¹ The respondent denied some of these benefits, so an application was filed with the Tribunal.

2After completing a written hearing, I denied the applicant’s request for an attendant care benefit. I then found that the two disputed treatment plans were reasonable and necessary, but—due to a lack of signed plans (as required by s. 38[3] of the Schedule) and the absence of evidence that these expenses had been incurred—the disputed benefits were not payable. However, I concluded my ruling by stating that the applicant could remedy these deficiencies, such that the benefits could one day be payable (the “Original Decision”).²

REQUEST FOR RECONSIDERATION

3The respondent took issue with my ruling, so it filed a Request for Reconsideration alleging I acted outside of my jurisdiction and that I made errors of law. Specifically, it alleged the following legal errors:

a. The Tribunal incorrectly found that the applicant could one day file treatment plans in compliance with s. 38(3), such that the disputed medical/rehabilitation benefits would then be payable; and

b. The Tribunal incorrectly found that the applicant could one day file evidence that the services and items listed in these treatment plans had been incurred, such that the medical/rehabilitation benefits would then be payable.

The respondent did not take issue with my denial of the attendant care benefit, nor did it contest my finding that the services and items listed in the treatment plans were reasonable and necessary.

4Due to the release of Aviva Insurance Company of Canada v. Danay Suarez (“Suarez”)³ in the interim, the respondent later dropped this second ground for reconsideration in its reply. As such, the respondent’s reconsideration is now limited to its ground concerning non-compliance with s. 38(3) of the Schedule.

5The applicant opposed the respondent’s reconsideration request. He also provided the Tribunal with signed copies of the disputed treatment plans with his reconsideration submissions. However, even though he endorsed the overall ruling, the applicant did note that the denial of the attendant care benefit should be revisited, due to the findings of his occupational therapist.

6The respondent opposed the applicant’s comments about the attendant care benefit. It also noted that, if the applicant wanted to furnish signed copies of the disputed treatment plans, he should have filed his own Request for Reconsideration.

ANALYSIS

7The four grounds for granting a reconsideration are listed in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (the “LAT Rules”):

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b. 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;

c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d. 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.

8Rule 3.1 of the LAT Rules requires the Tribunal to interpret these rules in a manner that promotes fairness and efficiency, all the while allowing disputes to be decided on the merits of the case.

9For the reasons to follow, the respondent’s Request for Reconsideration is denied.

Section 38(3) and Medical Benefits

10Entitlement to medical and rehabilitation benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the expenses listed in a treatment plan are reasonable and necessary as a result of accident-related injuries.

11Section 38(3) lists the requirements that a valid treatment plan must include. Of import to this decision is subsections (a) and (b):

A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement;

(b) be completed and signed by a regulated health professional…

12Subject to certain exemptions (e.g., items costing $250.00 or less), an insurer is not required to pay for a benefit if there is non-compliance with s. 38(3): see s. 38(2).

13In the Original Decision, I concluded that the services and items listed in the disputed treatment plans are reasonable and necessary. However, due—in part—to a lack of signed plans included with the applicant’s written submissions, I found the respondent had no obligation to pay any amount over $250.00 until there was compliance with s. 38(3):

First, the respondent claimed that the treatment plans are not signed by the applicant and the preparing healthcare professional—a violation of s. 38(3) of the Schedule. The respondent, therefore, argued that the applicant cannot receive payment for these benefits. In his reply, the applicant simply stated that he did, in fact, sign the treatment plans.

Upon review of the plans, I am satisfied that they have not been signed, and—even after this deficiency was raised by the respondent—the applicant did not provide signed copies with his reply. While several of the smaller items in the assistive devices plan are not captured under this requirement (i.e., s. 38[2][c][ii] states that devices totalling $250.00 or less per item do not require compliance with s. 38[3]), s. 38(2) makes clear that payment is only required after meeting the criteria of s. 38(3)…

These criteria include signatures from both the insured person and the preparing healthcare professional, so until there is a signed copy, I am satisfied that there is no requirement for the respondent to pay for any incurred services or items totalling more than $250.00.

However, as I have found the services and devices in these two plans to be reasonable and necessary, it is still open to the applicant to file signed treatment plans with the respondent before then incurring these expenses. Till that time though, there are no payments for medical benefits owing to the applicant.⁴

14The respondent argued my ruling deprived the parties of finality, and, in doing so, exceeded the Tribunal’s jurisdiction. First, by allowing the applicant to one day meet the requirements under the Schedule (such that payment would be required at an indeterminate, future date), I went outside my jurisdiction and considered the possibility of future events. Additionally, this determination left the respondent in an impossible situation, as the Tribunal is functus officio once a decision is rendered. That is, there is no dispute resolution mechanism available to the parties if the respondent chooses to still deny payment (especially if it is based on a new, unaddressed ground, e.g., a lack of available funding under the applicant’s treatment limit).

15In response, the applicant argued that the Original Decision was “just and fair”. As referenced above, he also included signed copies of the disputed treatment plans with his reconsideration submissions.

16Beyond the fact there is now no dispute over my ruling involving items valued at $250.00 or less (since the ground for reconsideration based on incurred amounts has been dropped), I am not satisfied that the remaining ground concerning a lack of signed plans merits reconsideration. In fact, I am satisfied that the inclusion of the signed plans with the applicant’s reconsideration submissions remedies the non-compliance with s. 38(3) from the Original Decision.

17To start, the mandate underpinning Rule 3.1 of the LAT Rules requires the Tribunal to interpret Rule 18.2 in a manner that promotes fairness, efficiency, and merit-based adjudication. Despite the contention that the applicant should have provided these documents earlier (or, at least, with his own Request for Reconsideration), I am satisfied that the inclusion of the signed treatment plans in his submissions remedies this non-compliance. That is, though I accept that the applicant should have included compliant plans prior to this point in the dispute, I am, ultimately, satisfied that considering these documents as part of the reconsideration process is the best way to ensure that there is an efficient process based on the merits of the case. I am also satisfied that there is no significant unfairness to the respondent, as it had the opportunity to address these new records in its reply, reconsideration submissions.

18It should also be noted that the powers enumerated under Rule 18.4(b) provide the Tribunal with wide discretion to confirm, vary, or cancel any part of a final decision. In light of this discretion, I see no reason why I would be unable to consider these signed plans as part of the reconsideration process. It also allows me to dispense with the respondent’s arguments considering the need for finality (as well as its reliance on the doctrine of functus officio), because the LAT Rules envision the occasional need for changes to decisions.

19I would also add that the recent holding from Suarez directs the Tribunal to consider the application process for accident benefits in a manner that is mindful of the Schedule’s consumer protection mandate. Specifically, the Divisional Court determined that a strict reading of the Schedule’s incurred provisions would run counter to this mandate:

I concur with the [insured person’s] argument that LAT Orders approving treatment and permitting claimants to incur and submit treatment expenses are the only effective remedy to a denied Treatment Plan.

If Aviva’s position is accepted, claimants will be required to fund disputed Treatment Plans in advance of an application to the LAT and will be limited to pursuing payment of only that treatment which they can afford to self-fund. Claimants with limited or no access to funds will be at the mercy of their insurers’ goodwill; this is the very power imbalance that the legislation is intended to circumvent.

Aviva’s position is untenable on any interpretative approach to the legislation. Not only does its proposed interpretation offend the remedial, consumer-oriented purpose of the legislation and regulations, it also ignores the clear wording of s. 280(1) of the Insurance Act which identifies entitlement and quantum as mutually exclusive issues, and s. 55(1) of the Schedule which is silent on a claimant’s failure to “incur” expenses as a restriction to initiating proceedings.⁵

With compliant treatment plans now forming part of his reconsideration submissions, I am satisfied that denying the applicant the ability to rely on these records would be an unduly strict reading of s. 38(3). Instead, the consumer protection mandate of the Schedule leans in favour of considering these records.

20With these principles in mind, I conclude that the applicant’s inclusion of the signed treatment plans with his reconsideration submissions is a sufficient basis to address the issue of compliance with s. 38(3). Therefore, once the applicant is able to demonstrate that the amounts have been incurred, the disputed medical/rehabilitation benefits shall be payable.

Attendant Care Benefit

21As noted above, the applicant took issue with my ruling regarding the attendant care benefit. The respondent argued that this submission is inappropriate, as the scope of its reconsideration request was limited to the two treatment plans.

22I do not find this brief submission from the applicant to be compelling. The denial of the attendant care benefit was not due to a weighing of the medical evidence. Rather, the benefit was denied for two, interrelated reasons: i.e., the requirement under s. 42(5) to file a Form 1 prior to the receipt of an attendant care benefit, and the lack of evidence from the applicant that the benefit was incurred during the resulting, relevant time period. Without submissions challenging these findings, there is no basis to reconsider this part of my ruling.

ORDER

23The respondent’s Request for Reconsideration is denied.

24If the applicant is able to demonstrate that the amounts in the disputed treatment plans have been incurred, these medical/rehabilitation benefits shall be payable.

Craig Mazerolle Adjudicator Licence Appeal Tribunal Tribunals Ontario

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2Majeed v. Aviva General Insurance Company, 2021 CanLII 111186 (ON LAT).
3. 32021 ONSC 6200.
4. 4Original Decision, at paras. 36, 37, and 39.
5. 5Suarez, at paras. 31, 32, and 34.