Licence Appeal Tribunal File Number: 21-005584/AABS
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:
Marija Kosic
Applicant
and
Aviva Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Gianluca Schepis, Paralegal
For the Respondent:
Alicia Edwards, Paralegal
HEARD:
By Way of written submissions
OVERVIEW
1Marija Kosic (“the Applicant”) was involved in an automobile accident on November 8, 2016 and sought benefits from Aviva Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Respondent characterized the Applicant’s injuries as a minor injury, subjected her to the Minor Injury Guideline (“the MIG”), and denied her entitlement to medical and rehabilitation benefits that were not included in the MIG. The Applicant disagreed with the characterization of her injuries and denial of medical and rehabilitation benefits and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference occurred and during it, the Respondent reversed its decision and agreed that the Applicant should not be subject to the MIG. It maintained its refusal to pay for a treadmill, which is the substantive issue in dispute for this hearing.
ISSUES
3The issues in dispute are:
i. Is the Applicant entitled to a medical benefit in the amount of $1,023.40 for a treadmill, proposed by New Age Specialized Assessments in a treatment and assessment plan dated January 17, 2021?
ii. Is the Respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the Applicant is not entitled to the benefits claimed.
5The Application is dismissed.
BACKGROUND
6The Applicant was the driver of a vehicle which was struck by another vehicle making a left turn at a suburban intersection. The Applicant was transported by ambulance from the scene of the accident to the hospital where she was assessed for complaints of head, neck, shoulder, and knee pain. She was diagnosed with soft tissue injuries and discharged. The Applicant followed up with her family physician, Dr. K. Terenzi, a few days later and ongoing with complaints of shoulder, knee, neck, and back pain, as well as anxiety.
7The Applicant submits that Dr. Terenzi recommended that she be active and suggested walking as part of her recovery from her accident-related injuries. However, she further submits that the COVD-19 pandemic precluded her from walking outside and forced her to purchase a treadmill to comply with Dr. Terenzi’s recommendation. The Respondent submits that it is not liable to pay for the treadmill because it was purchased prior to the submission of the treatment plan. In the alternative, it submits that the treadmill is not a reasonable and necessary expense for the Applicant’s injuries.
8The onus is on the Applicant to establish entitlement to the treadmill.
ANALYSIS
9I find that the Respondent is not liable to pay for the treadmill because the Applicant incurred the cost of it prior to submitting a treatment plan
10Pursuant to section 38(2), the Respondent is not liable to pay for an expense in relation to a medical and rehabilitation benefit that was incurred before the Applicant submits a valid treatment and assessment plan, but for four exceptions:
i. The Respondent gives notice to the Applicant that it will pay the expense without a treatment and assessment plan;
ii. The expense is for an ambulance or other goods and services provided on an emergency basis not more than five days after the accident;
iii. The expense is reasonable and necessary as a result of the impairment sustained by the Applicant for drugs prescribed by a regulated health professional or, certain goods at a cost of $250.00 or less per item; or
iv. The Respondent agrees that the expense is essential for the treatment or rehabilitation of the insured person, or for certain services at a cost of $250.00 or less per item.
11The treadmill was purchased prior to the submission of the treatment and assessment plan. The Applicant purchased the treadmill online for a cost of $823.40 on April 25, 2021 2020. The treatment plan for the treadmill is dated January 19, 2021, about nine months after it was purchased. As a result, the Respondent is not liable to pay for it pursuant to section 38(2).
12The treadmill does not fall in any of the four exceptions provided under section 38(2). There is no evidence the Respondent ever agreed to pay for the treadmill, it was not purchased on an emergency basis, and the cost of it is over $250.00.
Do the Reasons for an Initial Denial Impact the Application of Section 38(2)?
13I find that the initial reasons for the denial are irrelevant to the application of section 38(2) of the Schedule.
14The Respondent initially denied funding for the treadmill because it believed the Applicant was subject to the MIG. The Applicant participated in an IE following the decision, which concluded that the Applicant sustained a minor injury, and that the treadmill was not reasonable and necessary. It appears that the Respondent’s section 38(2) defense arose only after the Applicant initiated her Application.
15I find that the reasons for the denial are irrelevant because section 38(2) provides the exceptions to the rule and those exceptions do not include whether the benefit was denied for a different reason. Section 38(2) is clear and unequivocal in that the Respondent is not liable to pay for a benefit that was incurred prior to the submission of a treatment and assessment plan. Ordering the Respondent to pay for the benefit, without concluding that the benefit falls in one of the four exceptions, would be contrary to the Schedule.
16The resolution of disputes by the Tribunal must be in accordance with the Schedule, pursuant to section 280(4) of the Insurance Act. This precludes me from ordering the Respondent to pay for a benefit that was incurred prior to the submission of a treatment and assessment plan, and it is not included in any of the exceptions in section 38(2) of the Schedule. Section 280(2) of the Insurance Act provides the Tribunal with the authority to resolve disputes in respect of an insured person’s entitlement to, or amount of, benefits. Section 280(4) of the Insurance Act provides that the Tribunal must resolve disputes in accordance with the Schedule. Considering this authority, I conclude that section 38(2) prevails despite the Respondent using the MIG as a means to deny the benefit and that the Respondent is not liable to pay for the benefit claimed.
Interest
17Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. It follows that no interest is payable as no benefits are payable.
Award
18I find no award payable because there is no evidence that the Respondent unreasonably withheld or delayed the payment of any benefits.
19The Applicant sought an award under section 10 of Reg. 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. She submits that the Respondent failed to uphold its obligation to adjust her claim because it never provided her treatment records and an updated medical report to its IE assessor, who then issued what she considers to be a vague and flawed report.
20The Respondent submits that the aforementioned records were provided to the assessor and that the updated medical report did not provide or substantiate any new and compelling evidence necessitating the use of a treadmill.
21I find that the evidence indicates that relevant treatment records were sent to the IE assessor. The Respondent provided an index of the medical records submitted to the assessor for the IE and the treatment records are included in that list. I agree with the Respondent that the letter from Dr. Terenzi is uncompelling because it provides little more information than a recommendation to continue exercise during the pandemic, which extended to a recommendation for a treadmill because public gyms were closed. This recommendation has no bearing on the characterization of the Applicant’s injuries, which was the prime reason for the IE. Considering the content of the letter, I find that it would not have changed the assessor’s opinion because that assessor’s opinion was based primarily on a physical examination of the Applicant.
22As a result, I find that no evidence demonstrating that the Respondent unreasonably withheld or delayed the payment of a benefit.
CONCLUSION AND ORDER
23The Respondent is not liable to pay for the treadmill claimed by the Applicant because it was purchased prior to submitted a treatment and assessment plan to the Respondent.
24No interest or award is payable.
25The Application is dismissed.
Released: July 20, 2023
Brian Norris
Adjudicator```