RECONSIDERATION DECISION
Before: Brian Norris, Adjudicator
File: 18-010628/AABS
Case Name: N. P. vs. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Mohamed S. Elbassiouni
For the Respondent: Jason H. Goodman, Nicole A. Dowling
OVERVIEW
1N.P., the applicant, filed this request for reconsideration. It arises out of a decision in which I found that he was entitled to a physiotherapy treatment plan but not entitled to a chiropractic treatment plan, nor a second physiotherapy treatment plan.
2The applicant makes this request pursuant to Rule 18.2(b) of Common Rules of Practice and Procedure, October 2, 2017 (“the Rules”). He submits that I made a significant error of law such that the Tribunal would likely have reached a difference decision. He submits that I misinterpreted section 38(11) of the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
RESULT
3The applicant’s request for reconsideration is denied.
BACKGROUND
4The applicant suffered soft-tissue injuries, predominantly to the neck and back, as a result of an accident on September 4, 2015. The respondent characterized the applicant’s injuries as a minor injury and subjected him to the Minor Injury Guideline (the “MIG”). The applicant claimed entitlement to certain treatment plans, which the respondent refused to fund. As a result, the applicant filed an application with the Tribunal to dispute the denials as well as the characterization of his injuries.
5The respondent, after receiving the applicant’s written submissions for the hearing, determined that the applicant’s injuries are beyond the minor injury definition. This resolved the dispute about the characterization of the applicant’s injuries and left only the treatment plans to adjudicate. During the hearing, I found that one of the physiotherapy treatment plans was reasonable and necessary and the other was not. I noted that the applicant may incur the reasonable and necessary plan and that the respondent is liable to pay for it once properly invoiced. I also found that the applicant abandoned his claim for the chiropractic treatment plan and, as a result, failed to satisfy his burden to prove entitlement to it.
6As well, and most important to this reconsideration, I found that the respondent’s notice in response to the physiotherapy plan that I found to be not reasonable and necessary, failed to comply with section 38(8) of the Schedule. As a result of that failure, I noted that the applicant was entitled to the goods and services related to that treatment plan which were incurred during the period starting on the 11th business day following the submission of the treatment plan, pursuant to section 38(11) of the Schedule. However, I found no evidence to show that the applicant incurred any goods or services on the 11th business day or any day thereafter. Thus, the applicant was not entitled to any payment or interest.
7The applicant disputes my interpretation of section 38(11) and asks that the decision be reconsidered. He submits that the respondent’s failure to comply with the section entitles him to all the goods and services described in the treatment plan that related to the period starting on the 11th business day, regardless of whether the goods and services were incurred.
8The respondent submits that the applicant’s submissions for this reconsideration were considered in the initial hearing and rejected. It further submits that the interpretation of section 38(11)(2) was reasonable and correct.
9I find no error of law in the decision and dismiss the applicant’s reconsideration request. My reasons are as follows.
ANALYSIS
10This reconsideration involves the consequence outlined in section 38(11)(2). The parties accept that the respondent’s refusal to pay for the disputed physiotherapy treatment plan failed to comply with section 38(8) and that section 38(11) is prompted.
11Section 38(11)(2) provides that:
If the insurer fails to give notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan date relate to the period starting on the 11th business day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
12I found that section 38(11)(2) rendered only the incurred goods and services payable. The applicant disagrees with my interpretation of section 38(11)(2).
Statutory Interpretation Principle
13The applicant relies on the principle set out by the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd.1 that words must be read in “their entire context and in its grammatical and ordinary sense harmoniously” with the scheme, object and intention of the legislation. Specifically, he submits that the phrase “described” in section 38(11) does not require the applicant to incur the goods and services. He further submits that different language would have been used had there been a requirement to incur the goods and services.
14The respondent disagrees and submits that the applicant puts too much emphasis on the term “described” and ignores the part of the clause which refers to a time period. It submits that the decision correctly interprets section 38(11) as the Tribunal did in previous decisions2.
15I agree with the respondent and find that timeliness is the focus of section 38(8) and that section 38(11)(2), which refers to section 38(8), requires the goods and services be incurred. While section 38(11)(2) fails to expressly state that the goods and services must be incurred, the reference in the section to a time period implies so. Otherwise, there would be no need to refer to a time period - the legislation would state that the entirety of the treatment plan is payable starting on the 11th business day.
16To the applicant, section 38(11)(2) serves as an exception to the reasonable and necessary test, entitling him to the treatment plan. He refers to the reconsideration decision in M.F.Z. v. Aviva3 to support this position. The respondent submits that the same decision endorses the conclusion in the initial decision in that it gives effect to the time period limitations contained in the section half of the section.
17I find that section 38(11)(2) serves as an exception to the reasonable and necessary test, but only to compel timely responses from insurers. The purpose of this section is to ensure that insurers respond to treatment and assessment plans in a timely manner so the insured can properly treat their injuries during the acute phase. It would be unreasonable to permit insurers unlimited time to reply to a treatment and assessment plan. To me, section 38(11)(2) is punitive to insurers in that it permits the insured to incur unapproved, and possibly not reasonable and necessary, medical benefits as a result of the insurer’s untimely response.
18I reject the applicant’s premise that section 38(15) implies that there is no requirement to incur the goods and services. Section 38(15) provides that:
The insurer shall pay for goods and services the insurer agreed to pay for in the notice under subsection (8) or (14) or is required to pay for under this section within 30 days after receiving an invoice for them.
19Section 38(15) addresses payment for incurred goods and services. The first part of the section directs insurers to make timely payment to service providers for the goods and services the insurer previously agreed to pay for. The latter part addresses incurred goods and services the insurer is obligated to pay for as a result of an untimely or insufficient response, as noted in section 38(11)(2). Section 38(15) is important for impecunious insureds because it guarantees they will not be forced to pay for goods and services incurred during the non-compliance period and that insurers will pay for the goods and services incurred during the period of non-compliance.
20Lastly, I find that the application of the applicant’s interpretation of section 38(11) leads to an absurd result. The result of the applicant’s interpretation is that a potential service provider receives a financial windfall from an insurer’s failure to comply with the time constraints of the Schedule, and the insured is left without treatment. Punitive measures in the Schedule are meant to benefit the insured person - not a potential service provider - to the detriment of the insurer.
Historical Analysis of 38(11)(2)
21I am not persuaded by the applicant’s historical analysis of the Schedule. The applicant submits that prior iterations of the Schedule used the term “provided” and that the 2016 amendment changed this to “described”. He submits that the material change is meaningful and eliminates the requirement to incur the goods and services.
22To me, the single word “provided” is not as relevant to the analysis as the phrase “provided under the treatment plan”. The prior language was too broad. This is because goods and services may be provided under a treatment plan but may not necessarily be noted, or described, in the treatment and assessment plan. Using the term “described” ensures that the goods and services incurred starting on the 11th business day are payable, so long as they are documented in the treatment and assessment plan.
CONCLUSION
23I find no error of law in my interpretation of section 38(11) as outlined in the initial decision. For this reason and those noted above, I deny the applicant’s request for reconsideration.
Released: January 6, 2021
Brian Norris
Adjudicator
Footnotes
- Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC).
- See 18-001808 v. Aviva Insurance Company of Canada, 2019 CanLII 22220 (ON LAT), 18-003194 v. Aviva Insurance Company, 2019 CanLII 34611 (ON LAT), and 17-005046 v. Aviva General Insurance, 2019 CanLII 34624 (ON LAT).
- 2017 CanLII 63632 (ON LAT).