20-000309/AABS

Released Date: 08/27/2021

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:

Randall Thring

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Clifford Singh, Counsel

For the Respondent:

Hermina Nuric, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Randall Thring, was involved in an automobile accident on July 27, 2018, and sought benefits from the respondent, Economical Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The applicant claimed certain benefits under the Schedule which the respondent denied. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed benefits to the applicant?

b. Is the applicant entitled to attendant care benefits of $966.06 per month from July 28, 2018 to date and ongoing, provided from Meditecs Health Management, submitted on June 14, 2019 and denied on June 25, 2019?

c. Is the applicant entitled to the remainder of $622.50 for a psychological assessment (transportation fees), recommended by Meditecs Independent Medical Examinations, in a treatment plan dated December 12, 2018 and denied on December 21, 2018?

d. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant has not met his onus of establishing entitlement to payment for attendant care benefits. He has also failed to establish that the fees claimed in association with the psychological assessment are reasonable and necessary, and he is therefore not entitled to payment. Since no benefits are owing, no interest is payable. There is no basis for an award. The application is dismissed.

ANALYSIS

No proof of attendant care costs incurred

5Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses "incurred" by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant.

6Section 3(7)(e) of the Schedule defines an "incurred" expense as:

a. The insured person has received the goods or services to which the expense relates;

b. The insured person has paid the expense, has promised to pay the expense or is legally obligated to pay the expense; and

c. The person who provided the goods or services did so in the course of the employment, occupation or profession in which he or she would ordinarily be engaged, but for the accident, or sustained an economic loss as a result of providing the good or services to the insured person.

7The applicant claims attendant care benefits from July 28, 2018 and ongoing but has furnished no proof that he has ever incurred expenses for attendant care services. He submitted a Form 1 (Assessment of Attendant Care Needs) on June 14, 2019, which the respondent accepted on June 25, 2019. Upon receipt of the Form 1, the respondent advised the applicant of his obligation to provide proof of incurred expenses. Eventually, on September 21, 2020 (some 15 months later), the respondent denied the applicant's attendant care benefit claim based on the opinion of its assessor, Dr. Yuri Marchuk.

8It is the applicant's onus to establish that the expenses he claims were "incurred" as defined in the Schedule. The applicant has made no direct submissions on his obligation under s. 19 to prove that he incurred expenses for attendant care services. Nor has he addressed the issue in reply. The respondent went so far as to obtain an order from this Tribunal requiring the applicant to produce proof of incurred, if any existed, before this hearing. That order was issued on June 11, 2020. I see no evidence in the record before me that the services of an aide or attendant were ever obtained by the applicant.

9Absent proof of incurred expenses, it is unnecessary for me to consider the parties' submissions on the applicant's substantive entitlement to attendant care benefits. The absence of proof of incurred expenses is determinative. I will note, however, that an insurer is not required to pay for attendant care services incurred before a Form 1 is submitted. In the present circumstances, it is readily apparent that for approximately the first 10 months of the period in dispute, (from July 28, 2018 to June 14, 2019), no Form 1 had been provided and the respondent is not liable to pay an attendant care benefit.

Transportation to psychological assessment not reasonable and necessary

10Section 15(1) of the Schedule provides that medical benefits shall cover all reasonable and necessary accident-related expenses incurred by or on behalf on an insured person for prescribed goods and services. These services include transportation to and from treatment sessions. Insurers are not obligated to pay medical benefits that exceed the legislated maximums, and they are not required to pay transportation expenses that are unauthorized [s. 15(2)].

11The applicant claims $622.50 for transportation to a psychological assessment. His submissions on this issue focus on the reasonableness and necessity of the assessment itself, only briefly addressing the transportation fee remaining in dispute. The applicant simply asserts that the expense is reasonable, offering no insight into how $622.50 is a reasonable amount, or how transportation to the assessment was necessary. The respondent's submissions on this issue are also brief, simply stating the position that the claimed fee is excessive. Neither party has tendered the disputed Treatment and Assessment Plan (OCF-18) in their document briefs for this hearing. Ultimately, it is the applicant's onus to show that the claimed expense satisfies the requirements of s. 15 of the Schedule, and he has not done so. I have no basis upon which to find that the outstanding amount is a reasonable and necessary expense.

Interest

12Since no benefits are payable, no interest is owing.

No basis for an award

13The applicant claims an award under Regulation 664 for unreasonably withheld or delayed benefits. The applicant's submissions on this issue are that the respondent was in possession of "a litany" of medical evidence and that its refusal to pay the benefits claimed amounted to conduct deserving of an award. I disagree. The applicant has failed to establish particulars of unreasonable conduct on the part of the respondent that would warrant an award. The well-established standard for awards under Regulation 664 is set out in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co.² The standard is conduct that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

14In this case, the respondent initially approved the applicant's attendant care benefit claim, even though the Form 1 was submitted 11 months after the accident without explanation as to how the applicant functioned without attendant care for that time. For over a year after initially approving the attendant care benefit claim, the respondent took no issue with the applicant's substantive entitlement. It simply refused payment because the applicant had not proven that the expenses were incurred.

15The applicant failed to produce the required proof to support his attendant care claim for another 15 months after submitting the Form 1. He failed to produce that documentation up until the hearing date, even after being ordered by this Tribunal to do so.

16I cannot find, based on these facts, that the respondent was unreasonable in withholding or delaying the payment of the attendant care benefit.

17The only other benefit in dispute is the transportation cost associated with the psychological assessment, which the respondent approved. The applicant has tendered no evidence to show that the expense was reasonable and necessary. I fail to see how approving a proposed assessment but for unsubstantiated transportation expenses is unreasonable conduct meriting an award. There is simply no basis for this claim. The request for an award is denied.

CONCLUSION

18The applicant has failed to discharge his onus of proving entitlement to payment for attendant care benefits during the period in dispute, as he has not provided proof that any such expenses were ever incurred. He has also failed to establish entitlement to the fees he claims for transportation to a psychological assessment. Since no benefits are owing, no interest is payable. There is no basis for an award.

19The application is dismissed.

Released: August 27, 2021

__________________________

Theresa McGee

Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 21993 OIC File No.: A-003985 (FSCO).