P.W. v. Aviva Insurance Canada, 2021 CanLII 30758

Licence Appeal Tribunal

Citation: P.W. v. Aviva Insurance Canada, 2021 ONLAT 18-000854/AABS

Release date: 03/10/2021

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:

[PW]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Paul Gosio

APPEARANCES:

For the Applicant:

Piotr Wojtiuk, Applicant

Maria Mikhailitchenko, Counsel (No submissions)

For the Respondent:

Aviva Insurance Canada

Suhasha Hewagama, Counsel (No Submissions)

HEARD: In Writing

January 15, 2021

OVERVIEW

1In a Decision released on April 7, 2020, the Tribunal found that the applicant was entitled to an examination expense in the amount of $1,131.44 for an attendant care assessment pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule").

2The respondent requested a reconsideration of the Decision on the basis that the Tribunal violated the rules of natural justice and procedural fairness. In its submissions, the respondent argued that the adjudicator's finding was based on an argument that was not raised by the parties. It asked that the Decision be varied, and a finding be made that the applicant is not entitled to the cost of the attendant care assessment.

3The respondent was correct. In the Decision, the adjudicator relied on section 25(1)4 of the Schedule, in order to find that the applicant was entitled to the cost of the attendant care assessment. Neither the applicant nor the respondent addressed this section in their submissions and focused their attention on whether the assessment was reasonable considering the applicant's accident related injuries.

4In a Reconsideration Decision released on November 11, 2020, I granted the respondent's request for reconsideration but found that the appropriate remedy was that the issue should be re-heard. As a result, I gave the parties an opportunity to make submissions on the applicability of section 25(1)4 of the Schedule.

5Neither party made submissions.

ANALYSIS

Examination Expense in the Amount of $1,131.44 for an Attendant Care Assessment

6As stated in the Decision dated March 19, 2020, this treatment plan was recommended by Dr. Aziz, chiropractor, proposing funding for the completion of an attendant care assessment and Form 1. The applicant's entitlement to this assessment is governed by section 25(1)4 of the Schedule. The parties were given an opportunity to make submissions on the applicability of section 25(1)4 of the Schedule. Neither party took the opportunity to do so. Despite this, the Tribunal will address the applicability of section 25(1)(4) of the Schedule to this case.

7Pursuant to section 25(1)4 of the Schedule, "an insurer shall pay the reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose, if incurred by or on behalf of an insured person."

8Pursuant to section 25(1)4 of the Schedule, the respondent would be liable to pay the fee charged under this treatment plan if:

I. The assessment is completed by an occupational therapist or registered nurse;

II. The fee charged was reasonable; and

III. The fee was incurred.

9In this case, the assessment and Form 1 was completed by Ms. Kurtach, a registered nurse. The fee charged for preparing the assessment and Form 1 was $1,131.44. I find this to be reasonable as it is in accordance with section 25(5)(a) of the Schedule which states that an insurer shall not pay more than a total of $2,000.00 for conducting any one assessment. The fee was incurred as defined by section 3(7)(e) of the Schedule. Since the requirements of section 25(1)4 of the Schedule have been met, I find that the applicant is entitled to the attendant care assessment.

CONCLUSION AND ORDER

10For the reasons noted above, I find that the applicant is entitled to the examination expense in the amount of $1,131.44 for an attendant care assessment recommended in a treatment plan submitted on October 21, 2015 and interest is payable pursuant to the Schedule.