Citation: Tlapale v. Wawanesa Insurance, 2023 ONLAT 21-005084/AABS

Licence Appeal Tribunal File Number: 21-005084/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:

Maria Tlapale

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Bonnie Oakes Charron

APPEARANCES:

For the Applicant:

Jeffrey Shinehoft, Counsel

For the Respondent:

Roman Myndiuk, Counsel

HEARD: In Writing

OVERVIEW

1Maria Tlapale, the applicant, was involved in an automobile accident on March 12, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was struck by a motor vehicle while crossing the street in a motorized wheelchair. The applicant has an extensive pre-accident medical history including a left-knee amputation, chronic pain, and multiple surgeries.

3Prior to the written hearing, in a letter dated November 17, 2022, the respondent informed the applicant that the policy limits were exhausted for medical/rehabilitation benefits. The applicant did not provide reply submissions to speak to the respondent’s position.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to medical benefits in the amount of $2,219.18 for chiropractic services recommended by Dr. Samira in a treatment plan/OCF-18 submitted on November 12, 2020?

ii. Is the applicant entitled to medical benefits in the amount of $3,391.96 for physiotherapy services recommended by Dr. Samira in a treatment plan/OCF-18 submitted on November 3, 2020?

iii. Is the applicant entitled to a cost of examination expense in the amount of $4,788.52 for occupational therapy services recommended by Miranda Mo in a treatment plan/OCF-18 submitted on February 3, 2021?

iv. Is the applicant entitled to medical benefits in the amount of $9,273.93 for an adjustable bed and mattress recommended by Miranda Mo submitted in an Expenses Claim Form/OCF-6 on October 7, 2020?

v. Is the applicant entitled to medical benefits in the amount of $2,982.85 ($4,988.10 less $2,095.25 approved) for occupational therapy services recommended by Miranda Mo in a treatment plan/OCF-18 dated May 28, 2021?

vi. Is the applicant entitled to medical benefits in the amount of $5,736.25 for psychotherapy services recommended by Miranda Mo in a treatment plan/OCF-18 dated November 9, 2020?

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

RESULT

5The applicant is not entitled to the disputed treatment plans because she has consumed the funds available within her policy limits for accident benefits. The applicant is not subject to the Minor Injury Guideline, nor has she been determined to be catastrophically impaired. For this reason, she is not entitled to the disputed treatment plans.

6As a result, I do not need to make any findings about the treatment plans in dispute.

ANALYSIS

Policy Limit

7I find that the applicant is not entitled to the disputed treatment plans because the policy limits have been exhausted.

8Section 18(3)(a) of the Schedule holds that the sum of the medical and rehabilitation benefits payable for an insured person who is not subject to the financial limit of the Minor Injury Guideline, shall not exceed $65,000 for any one accident. The applicant has exhausted the available funding for non-catastrophic rehabilitation and medical benefits under section 18(3)(a) of the Schedule.

9Catastrophic impairment status under section 18(3)(b) of the Schedule would open up a new level of benefits for the applicant. However, the applicant has not been deemed catastrophically impaired.

10The respondent’s position is that the applicant’s policy limits have been exhausted. It submits a denial letter, sent to the applicant dated November 17, 2022, as evidence. This letter states clearly that the applicant’s policy limit was reached.

11The applicant did not acknowledge the exhausted policy limit in her submissions for this application, dated November 28, 2022. Further, she provided no reply submissions to speak to the respondent’s assertion that the totality of the available funds had been spent.

12Pursuant to Rule 9.1, a request for more information was made of both parties as to whether they agreed that the policy limit was reached.

13In response to the above query, the applicant indicated that she was not in a position to dispute the amount of accident benefit funding that had been paid by the insurer. Instead, she requested that the disputed treatment plans be adjudicated in the event the applicant was deemed catastrophically impaired sometime in the future, thereby gaining access to additional funds pursuant to section 18(3)(b) of the Schedule.

14The respondent argued that a withdrawal of the application was appropriate given that the available policy limits had been reached and the applicant has not been designated catastrophically impaired.

15I give weight to the denial letter provided by the respondent. The applicant did not make any reply submissions about the policy limit issue, nor confirm or deny that the limit had been reached when asked for clarification by the Tribunal.

16I accept the respondent’s position that the current application should be withdrawn. However, this power lies solely with the applicant.

17It is the applicant’s burden to demonstrate that the benefits are reasonable and necessary. The fact the applicant’s policy limit has been reached prefaces any other consideration in this matter. In order for the treatment plans to be reasonable and necessary and payable, the applicant must be deemed catastrophically impaired. As that issue is not before me, it follows that she cannot demonstrate that and therefore I cannot find the treatment plans to be reasonable or necessary. Further, where there are no remaining funds available to the applicant unless she is deemed catastrophically impaired, it follows that I have no authority to order payment. The applicant did not direct me to any authority that would allow me to proceed.

18The applicant is therefore not entitled to any of the treatment plans in dispute.

Interest

19Given that there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

20The application is dismissed, and I find that the applicant is not entitled to the disputed treatment plans, as the policy limits were exhausted in November 2022.

21The applicant is not entitled to interest pursuant to s. 51 of the Schedule.