Citation: Escobar v. The Guarantee Company of North America, 2021 ONLAT 20-000259/AABS
Released: February 3, 2021
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:
Claudio Escobar
Applicant
and
The Guarantee Company of North America
Respondent
DECISION AND ORDER
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Claudio Escobar, Applicant John Lundrigan, Counsel
For the Respondent: The Guarantee Company of North America, Representative Shawn Macdonald, Counsel
HEARD: By way of written submissions
OVERVIEW
1Claudio Escobar was involved in an automobile accident on November 22, 2003, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule'').1 Claudio Escobar was denied certain medical and rehabilitation benefits by Guarantee and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Is the medical benefit in the amount of $9,903.00 for dental treatment, recommended by Dr. John Kokkinakis in a treatment plan (OCF-18) dated March 7, 2018, reasonable and necessary?
b. Is the rehabilitation benefit in the amount of $11,700.00 for a hot tub, recommended by Modern OT in an OCF-18 dated August 6, 2019 and denied, inter alia, on the basis that the expense was incurred before the treatment plan was submitted?
c. Is Guarantee liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Claudio Escobar?
d. Is Claudio Escobar entitled to interest on any overdue payment of benefits?
FINDING
3Based on a review of the evidence, I find that:
a. Claudio Escobar is entitled to the OCF-18 for dental treatment, plus interest in accordance with s. 51.
b. Claudio Escobar is not entitled to the OCF-18 for a hot tub as the expense was incurred prior to the submission of the treatment plan, contrary to s. 38(2). As no payment is overdue, it follows that interest is not payable.
ANALYSIS
Issue 2a – OCF-18 for dental treatment
4Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. Claudio Escobar bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
5Claudio Escobar’s submissions regarding the reasonableness and necessity of the dental treatment plan focus on addressing the accident-related damage to certain teeth. Claudio Escobar relies on Dr. Kokkinakis’s recommendation in the report/notes and OCF-18 that teeth #16 and #46 require additional work in order to repair the damage. Claudio Escobar submits that Guarantee’s s. 44 assessor, Dr. Ouanounou, applied the wrong test in terms of the onus on Claudio Escobar to prove that the injuries were caused by the accident. Claudio Escobar’s position is that Dr. Ouanounou’s report appears to be based on a lack of complete certainty that the teeth were injured as a result of the accident, not that Claudio Escobar has to prove on a balance of probabilities that he injured the specific teeth at issue.
6In response, Guarantee submits that one of the teeth at issue was removed before the accident, and therefore could not have been one of the teeth claimed to have been injured in the accident. Guarantee points to Dr. Kokkinakis’s medical records that show that on December 1, 2001, tooth #46 was removed. As such, Guarantee submits that Claudio Escobar’s request for funding to repair a tooth that does not exist is not reasonable or necessary.
7In a letter dated March 10, 2004, Dr. Kokkinakis notes that tooth #47 is fractured, and that this injury is a direct result of the accident. The evidence shows that the damaged tooth will require a crown, but because tooth #46 is missing, a bridge will be required to repair the damage. Dr. Kokkinakis goes on to explain that because of the type of force, nerve damage can occur in the affected teeth and may not be apparent for quite some time after the initial injury. Dr. Kokkinakis states that there may be other teeth injuries that are not presently obvious, that Claudio Escobar’s dental problems are ongoing, and will require future treatment as they arise.
8Guarantee contends Claudio Escobar’s claims regarding tooth #46, however, in reply, Claudio Escobar agrees that tooth #46 was removed, further, that it may have been an error that tooth #46 was mentioned as a damaged tooth. In addition, the evidence shows that tooth #47 was damaged as direct result of the accident. While I agree that any issue with tooth #46 is not accident related, I find that in order to repair tooth #47, tooth #46 would need to be addressed while repairing tooth #47.
9I find that Claudio Escobar’s dental issues are a direct result of the accident and the goals of the OCF-18 are reasonable and necessary. Guarantee does not dispute that the damage to tooth #47 was accident related. Although its assessor focused on the medical documentation surrounding tooth #46, I do not find Dr. Ouanounou refuted the claims surrounding tooth #47. I prefer the evidence of Dr. Kokkinakis which supports that the damaged teeth were a direct result of the accident, that the affected teeth would reasonably require the recommended treatment in order to repair the accident-related damage, and that the cost of the repair is reasonable given the extent of the damage and the treatment required to address the injuries. Accordingly, I find that on a balance of probabilities, Claudio Escobar is entitled to the OCF-18 for dental treatment, as it is reasonable and necessary. The benefit is overdue therefore it follows that interest applies pursuant to s. 51.
Issue 2b – OCF-18 for assistive devices
10I find that as a result of Claudio Escobar not complying with the requirements set out in s. 38(2) of the Schedule, the OCF-18 in the amount of $11,700.00 is not payable. Claudio Escobar incurred the amount for the hot tub on November 29, 2017, prior to submitting the OCF-18 to Guarantee for approval. Guarantee argues that this prevents it from being able to assess whether or not this benefit was reasonable and necessary prior to Claudio Escobar incurring the expense. I agree.
11Section 38(2) of the Schedule sets out that an insurer is not liable to pay a medical or rehabilitation benefit, or an assessment or examination which was incurred by an insured person prior to the insured person submitting a treatment plan which satisfies the requirements set out within s. 38(3). There are four exceptions noted within s. 38(2).
12I find that the evidence demonstrates that the cost of the OCF-18 was incurred prior to Claudio Escobar submitting it to Guarantee. Claudio Escobar did not make any submissions regarding whether the exceptions listed in s. 38(2) apply, and I do not find any of those exceptions are applicable in this case. While I am sympathetic that Claudio Escobar incurred the expense, I find that the requirements set out in s. 38(2) are clear. Consequently, due to Claudio Escobar’s non-compliance with s. 38(2), the OCF-18 is not payable.
AWARD
13Claudio Escobar also seeks an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
14Neither party made submissions on the award issue and I do not find that an award is appropriate in the circumstances. Guarantee relied on the reports of its assessors, which supported that the OCF-18 for dental treatment was not reasonable and necessary. It was not unreasonable for it to do so, and I do not find that its reliance on the s. 44 reports resulted in an unreasonable withholding of payment.
15Claudio Escobar incurred the hot tub expense prior to submitting the OCF-18, therefore, he cannot claim that there was an unreasonable withholding of payment for the benefit. As such, an award is not appropriate.
ORDER
16Claudio Escobar is entitled to payment for the OCF-18 for dental treatment, as it is reasonable and necessary. Interest is payable pursuant to s. 51.
17Claudio Escobar is not entitled to payment for the OCF-18 for a hot tub as the expense was incurred prior to the submission of the treatment plan. No interest is payable.
18Claudio Escobar is not entitled to an award.
Released: February 3, 2021
Derek Grant
Adjudicator