Release date: 2021/03/04
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:
John Biro
Applicant
and
Unica Insurance Inc.
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
John Biro, Self-represented Applicant
For the Respondent:
Jamie R. Pollack, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The self-represented applicant, John Biro, was involved in an automobile accident on March 11, 2007, and sought benefits from the respondent, Unica Insurance Inc., pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 19961 (the “Schedule”).
2The applicant applied for arbitration at the Financial Services Commission of Ontario (“FSCO”). On June 8, 2017, FSCO issued a decision granting the applicant attendant care benefits and certain medical benefits, a special award and interest on the amounts outstanding. FSCO determined that the applicant’s accident-related impairment was non-catastrophic and denied the applicant’s claim for a non-earner benefit and for certain other medical benefits.
3The applicant then appealed the FSCO decision, but the appeal was dismissed.
4On April 14, 2020, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”), claiming $6.0 million for chiropractic services arising from the March 11, 2007 accident.
5The respondent raises a preliminary issue and seeks a dismissal of the application without a hearing.
PRELIMINARY ISSUE
6The preliminary issue is as follows:
(i) Should the application be dismissed without a hearing pursuant to Rule 3.4 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”) for one or more of the following reasons:
(a) the applicant was previously found not to be catastrophically impaired as a result of the motor vehicle accident by FSCO in a decision released on June 8, 2017, which decision was upheld by FSCO in a decision of the Director’s Delegate released on November 2, 2017;
(b) the application is moot because the applicant has exhausted the medical limits available to him under the Schedule; or
(c) the Tribunal has no jurisdiction to hear the application as the respondent does not assert a denial of a benefit set out in a treatment and assessment plan.
RESULT
7I find that the Tribunal lacks jurisdiction to hear this application. The applicant has not followed the process set out in the Schedule for claiming chiropractic services, a medical benefit. Specifically, he did not file a Treatment and Assessment Plan (OCF-18) as required under s. 38 of the Schedule.
8Since the applicant has not followed the steps set out in the Schedule for claiming the medical benefit he seeks, the respondent has not had an opportunity to consider it and either approve or deny the benefit. Without a denial of a benefit, the Tribunal does not have power under the Insurance Act2 to hear or decide an application for accident benefits.
9No issue is properly in dispute before the Tribunal. For this reason, the application is dismissed. The Tribunal lacks jurisdiction to engage with the other grounds for dismissal.
10In the next section of this decision, I explain to Mr. Biro my reasons for dismissing his application.
MY EXPLANATION TO MR. BIRO ABOUT WHY I AM DISMISSING HIS APPLICATION
11Mr. Biro, I have read your application and the letters you have addressed to the Tribunal. In the letters, you raise several concerns about the FSCO litigation and the effectiveness of your counsel at the time. You allege that the money FSCO ordered your insurance company to pay you was stolen from you. You also take issue with the insurance company’s handling of your accident benefits claim.
12I have no jurisdiction to grant you the outcome you seek. Jurisdiction means the power to make legal decisions. My ability to make legal decisions comes from statute. I have no power outside the authority granted to this Tribunal by its governing legislation.
13Many of the challenges you face are outside the scope of this Tribunal’s legislated mandate. I have no power to respond to those challenges. For example, the Tribunal cannot consider whether your former counsel did a good job of representing you, and the Tribunal cannot investigate allegations of theft.
14I have heard your story and understand your concerns, which you have articulated well. The main reason I am unable to make the order you seek is that you have not submitted a proper claim for the chiropractic treatment you seek, which is a “medical benefit” under the Schedule. You have not followed the steps required to claim a medical benefit.
15Before the Tribunal can consider an application from you, you must complete the necessary steps so that the insurance company can process your claim. Right now, the insurance company has not denied your claim. Without a denial, there can be no dispute. And without a dispute, the Tribunal has no power to decide.
16Because the Tribunal has no power to order the insurance company to pay for your treatment, I must dismiss your application at this stage. Your application cannot proceed to a full hearing.
PROCEDURAL ISSUES
17On January 27, 2021, the Tribunal extended the deadline for the applicant to file additional submissions on the preliminary issue. The Tribunal extended the deadline until February 12, 2021. This was done to accommodate the applicant’s disability. The respondent consented to the filing extension.
18As of the date of this decision, the Tribunal had not received further submissions or correspondence from the applicant. The Tribunal will decide the preliminary issue on the existing record, which includes letters filed by the applicant on December 18, 2020, December 25, 2020 and January 12, 2021.
ANALYSIS
Dismissal without a hearing not in issue
19The respondent’s request for a dismissal of this application is improperly pleaded. This matter falls outside the scope of Rule 3.4 of the Common Rules (“Dismissal without a hearing”). The matter has already proceeded to a hearing of the preliminary issue. The parties have been provided with an opportunity to make written submissions. This, in effect, is dismissal with a hearing.
The Tribunal lacks jurisdiction to hear the application
20I find that the Tribunal lacks jurisdiction to hear this application. The applicant has not properly claimed a benefit according to the process set out in the Schedule. There has been no denial of a claim to trigger a “dispute” within the meaning of s. 280 of the Insurance Act.
21Under s. 38 of the Schedule, to claim payment for chiropractic services, a medical benefit, an insured person must submit a Treatment and Assessment Plan (OCF-18) to their insurer describing the goods, services, assessments and examinations that they are asking the insurer to pay for. That treatment plan must be prepared by a health practitioner and must meet other requirements set out in the regulation. Only after receiving a treatment plan is the insurer required to consider it and either pay the requested amount or deny the proposed treatment.
22Unless the insurer has denied the treatment claimed, there exists no “dispute” as defined in s. 280 of the Insurance Act. The Insurance Act only gives the Tribunal the power to make binding legal decisions about “disputes.”
23Section 280(1) and (2) of the Insurance Act empowers the Tribunal to resolve disputes over accident benefits as follows:
280(1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. 2014, c. 9, Sched. 3, s. 14.
(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). 2014, c. 9, Sched. 3, s. 14.
24The language of the provision is clear. The Tribunal has jurisdiction over dispute resolution. Absent a denial of a benefit, there can be no dispute. The Tribunal has no jurisdiction to adjudicate a claim for a medical benefit, or any other benefit, until that claim has been disputed by the insurer.
25For these reasons, the Tribunal must dismiss the application.
CONCLUSION
26The Tribunal lacks jurisdiction over the application, and it is accordingly dismissed.
Date of Issue: March 4, 2021
Theresa McGee, Vice-Chair