Release date: 05/26/2021
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:
Liliana Solanes
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Amanda Faulkner, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in a motor vehicle accident on November 7, 2015 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 20101 (the “Schedule”). The respondent denied the benefits and the applicant then applied to the Licence Appeal Tribunal (the “Tribunal”) for the resolution of the dispute.
ISSUES TO BE DECIDED
2As per the case conference order of May 27, 2020 the parties confirmed that the issues to be decided in this hearing are:
a. Is the applicant entitled to attendant care (AC) benefits in the amount of $1,878.60 per month from February 2, 2018 to date and ongoing?
b. Is the applicant entitled to the assessments recommended by Alliance Diagnostics and Treatment Inc., as follows:
i. $1,998.00 for an orthopedic assessment in a treatment plan (Plan) dated February 2, 2018;
ii. $5,950.00 for a neuropsychological assessment in a Plan dated May 2, 2018; and
iii. $1,722.93 for a home site assessment in a Plan dated February 2, 2018?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met her onus to show that she is entitled to AC benefits, an orthopedic assessment and a home site assessment. There is no entitlement to interest as the AC benefits and the costs of the orthopedic assessment and home site assessment are not overdue. The respondent has conceded that the neuropsychological assessment is reasonable and necessary. For the reasons noted below there is no entitlement to interest for the neuropsychological assessment.
ANALYSIS
Attendant Care Benefits
4The applicant is seeking AC benefits from February 2, 2018 to date and ongoing. The accident took place on November 9, 2015 and thus is governed in part by the version of the Schedule that was in place prior to June 1, 2016.
5The applicant submits that she requires AC as a result of limitations due to injuries sustained in the accident. The respondent submits that as per the applicable version of the Schedule, the applicant is not entitled to claim AC benefits as more than 104 weeks have passed since the accident occurred and the applicant is not catastrophically impaired.
6The duration of the claim for AC benefits is governed by Section 20 of the applicable version of the Schedule. Section 20 provides that attendant care benefits for a non-catastrophically impaired applicant is available for up to two years (104 weeks post-accident) and no further attendant care benefits are available post 104-weeks. Specifically, section 20(2) states:
20.(2) Subject to subsection (3), no attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.
20.(3) The time limits set out in subsections (1) and (2) do not apply in respect of an insured person,
(a) who sustains a catastrophic impairment as a result of the accident; or
(b) who is entitled to the optional medical, rehabilitation and attendant care benefit under paragraph 5 of subsection 28.1.
7As per the Schedule, no AC benefits can be claimed past 104 weeks from the accident unless the applicant is catastrophically impaired or purchased optional benefits. In this case the applicant is not catastrophically impaired under the Schedule and did not purchase optional benefits and therefore, as per the Schedule AC benefits are not available to the applicant from November 7, 2017 and ongoing. As such the applicant’s claim for AC benefits from February 2, 2018 is not allowed under the Schedule and therefore, there is no entitlement to AC and no interest is payable as no benefits are overdue.
The Assessments
8Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses, including assessments, that are reasonable and necessary as a result of the accident. The cost of the assessment is governed by section 25(5). The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.
a) The neuropsychological assessment.
9The issue in dispute as confirmed above is the applicant’s entitlement to a neuropsychological assessment as per the treatment plan of May 2, 2018 in the amount of $5,950.00. The Tribunal requested that the applicant provide the treatment plan for the neuropsychological assessment. This request was made after the receipt of the submissions of the parties and prior to the release of this decision. Despite the request, the applicant failed to provide same and thus, I am left with the evidence filed and relied upon by the parties at the written hearing.
10While the applicant argues that the treatment plan for the neuropsychological assessment is dated May 2, 2018, the respondent argues that the treatment plan for the neuropsychological assessment plan was actually dated April 23, 2018. The respondent explains that an explanation was sent to the applicant agreeing to fund the neuropsychological assessment and this letter was dated October 1, 2020, but erroneously noted that the treatment plan was dated April 23, 2020 as opposed to 2018. The respondent points to the letter of October 1, 2020 wherein the respondent acknowledges receipt of the treatment plan for a neuropsychological assessment in the amount of $5,950.00 (the same amount as the issue in dispute).
11The letter from the respondent of October 1, 2020 as well confirms that the respondent is approving the neuropsychological assessment due to the results of the insurer examination (IE) that took place on September 22, 2020. The respondent argues however, that interest is not payable as the neuropsychological assessment was not incurred.
12As per the letter of October 1, 2020, the respondent has conceded that the proposed neuropsychological assessment and the cost of same is reasonable and necessary based on the results of an IE. I see no reason to interfere with this decision.
13With respect to the interest, pursuant to section 15(1) the respondent is liable to pay for goods and services incurred by the applicant. Interest can only accrue on goods and services for which payment is overdue. Pursuant to section 3(8) a finding of “incurred” can be made by the Tribunal in situations where the respondent unreasonably withheld or delayed payment thereby allowing the Tribunal to deem the expense to have been incurred. There is no evidence or argument made by the applicant that such is the case and therefore, there is no need to make a finding to deem the expense to have been incurred. There is also no evidence showing that the assessment was incurred and thus, there are no amounts that are overdue or owing, therefore there is no order for interest.
b) The Home Site Assessment and Orthopedic Assessment
14As was the case for the treatment plan for the neuropsychological assessment, the applicant has not provided the treatment plans for the orthopedic assessment or the home site assessment despite the Tribunal requesting same. The applicant only provided the clinical notes and records from Dr. Kingston who I presume to be her family doctor. The records indicate that the applicant sustained ongoing injuries as a result of the accident, however, the clinical notes and records do not speak or point to the reasonableness or necessity of an orthopedic assessment or home site assessment. Without any corroborating evidence, the applicant has not met her onus of showing that the home site assessment or orthopedic assessment is reasonable and necessary.
15The applicant also argues that the respondent did not respond to the Plans for a home site assessment or orthopedic assessment in accordance with section 38(8). The applicant, however, provides no evidence in support of this argument and does not provide the letters denying the Plans in dispute.
16The respondent provided a letter denying the home site assessment dated June 4, 2018 and, in that letter, advises the applicant that the pre-existing conditions have not been parsed out, and that the pre-existing conditions may impact her recovery. The letter lists the pre-existing conditions for which it is seeking information. Following the list of reasons, the letter of June 4, 2018 then advises the applicant of the section 44 assessment to determine if the assessment is reasonable and necessary considering her pre-existing conditions. The applicant provides no argument or evidence that this letter is vague, that she did not understand the reasons for the denial or that it is in breach of the Schedule. The applicant provides no evidence or submissions that would lead to the conclusion that the letter of June 4, 2018 is not in compliance with section 38(8). Given the level of detail in the reasons, medical and otherwise, provided in the letter of June 4, 2018, I find that the respondent provided proper notice of denial for the in-home assessment.
17With respect to the orthopedic assessment I find that there is no basis to hold the respondent in non-compliance, as no evidence is filed with respect to the denial.
18Based on the reasons above, the applicant is not entitled to an orthopedic assessment and is not entitled to a home site assessment. There is also no entitlement to interest as there are no benefits owed to the applicant.
ORDER
19The applicant is entitled to the neuropsychological assessment. The balance of the applicant’s appeal including the claim for interest is dismissed.
Released: May 26, 2021
Monica Chakravarti, Adjudicator