Licence Appeal Tribunal File Number: 21-008230/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:
Gerry Pronovost
Applicant
and
Northbridge General Insurance Company
Respondent
DECISION
ADJUDICATOR: Christopher Evans
APPEARANCES:
For the Applicant: Jennifer M. Kelly, Counsel
For the Respondent: Nicholas M. Wine, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Gerry Pronovost, the applicant, was involved in an automobile accident on February 13, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Northbridge General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2The applicant seeks benefits for osteopathy, kinesiology, and physiotherapy services that he incurred without first submitting a treatment plan. He argues that an exception applies to the general rule under s. 38(2) of the Schedule that an insurer is not liable to pay for expenses an insured person incurs before submitting a treatment plan.
ISSUES
3The issues in dispute are:
- Is the applicant entitled to $2,028.20 for osteopathy, kinesiology, and physiotherapy services?
- Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant also requests an award under s. 10 of Regulation 664: Automobile Insurance and costs in his submissions. The respondent objects to these issues being added because the applicant did not provide notice.
RESULT
5The applicant is not entitled to the expenses in dispute, interest, an award, or costs.
THE APPLICANT IS NOT ENTITLED TO THE EXPENSES IN DISPUTE
6The applicant incurred the expenses in dispute without first submitting a treatment plan. Section 38(2) of the Schedule states that subject to four exceptions, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before an insured person submits a treatment plan that satisfies the requirements of subsection (3).
7The applicant relies on the exception under s. 38(2)(d). It applies where the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in ss. 15(1)(h) or 16(3)(l) with a cost of $250 or less per item or service. Sections 15(1)(h) and 16(3)(l) refer to “other goods and services” that the insurer agrees are essential for the treatment or rehabilitation of the insured person, and for which a benefit is not otherwise provided in the Schedule.
8The respondent did not explicitly agree that the expenses in dispute were essential for the applicant’s treatment or rehabilitation. The applicant submits that it did so implicitly by later approving treatment plans for similar services.
9The respondent denies that it agreed the expenses in dispute were essential for the applicant’s treatment or rehabilitation. It argues that the services it later approved were for different treatments proposed by different clinics, that the services other than kinesiology treatment fall outside the scope of ss. 15(1)(h) and 16(3)(l), and that the cost of the previously-incurred expenses is more than $250.
The meaning of s. 38(2)(d)
10Section 38(2)(d) was added to the Schedule in 2016: O Reg 251/15, s. 13(2). Corresponding amendments were made to ss. 15(1)(h) and 16(3)(l): O Reg 251/15, ss. 5-6. The meaning of s. 38(2)(d) becomes clear when the amendments are read together.
11Insurers must pay medical and rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of an insured person for the goods and services enumerated in ss. 15(1) and 16(3). Sections 15(1)(h) and 16(3)(l) are the last of the enumerated goods and services. In their original form (O Reg 34/10), they provided “for other goods and services… that the insured person requires” other than goods or services for which a benefit is otherwise provided in the Schedule. In 2016, these sections were amended to replace the phrase “that the insured person requires” with “that the insurer agrees are essential” for the treatment or rehabilitation of the insured person: O Reg 251/15, ss. 5-6. The amendments narrowed the scope of these sections in two ways. First, the goods or services must be essential rather than reasonable and necessary. Second, the goods or services must not only be essential; the insurer must agree that they are essential.
12The general rule under s. 38(2) is that if an insured person wishes their insurer to fund treatment, they must first propose it in a treatment plan. This enables the insurer to determine whether the proposed goods and services are reasonable and necessary or, in the case of ss. 15(1)(h) and 16(3)(l), whether they are essential for the insured person’s treatment or rehabilitation. Section 38(3) requires that treatment plans include certain information to assist the insurer in making that determination.
13In its original form (O Reg 34/10), s. 38(2) provided three exceptions to the general rule. The exception under subsection (c) applied to reasonable and necessary expenses for (i) prescription drugs, or (ii) goods with a cost of $250 or less per item. Clause (ii) enables insured persons to obtain relatively inexpensive goods quickly without first having to obtain and submit a treatment plan then wait for the insurer’s response. As such requests are relatively simple, insurers do not need treatment plans to determine whether the goods are reasonable and necessary.
14In its original form (O Reg 34/10), subsection (c)(ii) applied to all goods, including those under ss. 15(1)(h) and 16(3)(l). It was amended when the test for ss. 15(1)(h) and 16(3)(l) changed from whether goods and services were reasonable and necessary to whether the insurer agreed they were essential for the insured person’s treatment or rehabilitation. Subsection 38(2)(d) was enacted, which applies to ss. 15(1)(h) and 16(3)(l). Subsection 38(2)(c)(ii) was narrowed to apply to ss. 15(1)(d) to (f) and 16(3)(h) to (j). The $250 limit applies to both subsections (c)(ii) and (d).
Section 38(2)(d) does not apply
15The burden of proof lies on the applicant to establish that he is entitled to the expenses in dispute: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 20. I find that he has not done so.
16The applicant argues that I must infer the respondent agreed the osteopathy, physiotherapy, and kinesiology services he incurred were essential for his treatment and rehabilitation because it later approved treatment plans for physical rehabilitation and kinesiology services. This argument can only apply to the kinesiology services he incurred. The respondent never approved osteopathy services. As physiotherapy is provided for at s. 15(1)(b) of the Schedule, it falls outside the scope of ss. 15(1)(h) and ss. 16(3)(l) and therefore outside the scope of s. 38(2)(d). The parties agree that kinesiology services fall under ss. 15(1)(h) or 16(3)(l) because they are not referenced elsewhere in ss. 15 or 16.
17The applicant filed a statement of account from the clinic where he incurred the expenses in dispute. It includes line items for 15 sessions of kinesiology treatment by Mr. P. Whissel totalling $1,018.80. It does not provide any further information about what the services entailed.
18I find that s. 38(2)(d) does not apply for the following reasons:
- It is unclear that the previously-incurred services were the same as the services the respondent later approved. The only evidence regarding the former is the statement of account. The only evidence regarding the latter is the treatment plan, which proposes 16 sessions of “[m]obilization, multiple body sites” and identifies Mr. Whissel as the treatment provider.
- The respondent only considered the kinesiology services proposed in the treatment plan. It never considered whether the previously-incurred kinesiology services were essential for the applicant’s treatment or rehabilitation, and never agreed that they were.
- It would defeat the purpose of s. 38(2) to find that if an insurer agreed to pay for services, it retroactively agreed to pay for any services of the same kind that an insured person incurred without submitting a treatment plan. That could place uncertain liabilities on insurers and lead to insured persons being denied services their insurers might otherwise have agreed to fund.
- Section 38(2)(d) applies to services of up to $250 per service. In this case, the applicant requested benefits for a 15-session course of treatment totalling $1,018.80.
19The applicant argues that I must infer the respondent agreed the previously-incurred services were essential for his treatment or rehabilitation because it would breach its duty of good faith by taking that position toward one set of services but not the other. I disagree. The respondent refused to pay for the previously-incurred services because the applicant had not proposed them in a treatment plan as required by s. 38(2). It was entitled to do so. It did not deny that the services were essential for the applicant’s treatment or rehabilitation. It therefore did not contradict itself by agreeing to pay for the services proposed in the treatment plan. Moreover, it is not clear that the two sets of services were the same.
20As s. 38(2)(d) does not apply, the respondent is not liable to pay for the expenses in dispute.
THE APPLICANT IS NOT ENTITLED TO INTEREST
21Section 51 of the Schedule provides that an insurer shall pay interest on overdue payments of benefits. As no benefits are payable, the applicant is not entitled to interest.
THE APPLICANT IS NOT ENTITLED TO AN AWARD
22The applicant submits that he is entitled to an award under s. 10 of Regulation 664 because the respondent unreasonably withheld or delayed payments. The respondent objects to this issue being considered because it is not listed as an issue in the Case Conference Report and Order.
23I agree that it would be unfair to consider the applicant’s claim for an award. As a matter of procedural fairness, the respondent is entitled to notice of the case to meet. The applicant did not communicate that he intended to claim an award before filing his submissions.
24In any event, the applicant would not be entitled to an award because he is not entitled to the expenses in dispute.
THE APPLICANT IS NOT ENTITLED TO COSTS
25The applicant submits that he is entitled to costs because the respondent denied the expenses at issue in bad faith. The respondent also objects to this issue being considered because it is not listed as an issue in the Case Conference Report and Order.
26I may consider the request for costs because Rule 19.2 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Rules”) provides that such requests may be made at a hearing at any time before the decision is released.
27Rule 19.1 provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.
28I find that the applicant is not entitled to costs. He argues that the respondent adjusted his accident benefits file in bad faith. That would relate to a claim for an award under s. 10 of Regulation 664. The applicant does not claim that the respondent acted inappropriately in defending this application before the Tribunal. He has therefore not identified any conduct that would merit a costs award.
ORDER
29The applicant is not entitled to the expenses in dispute, interest, an award under s. 10 of Regulation 664, or costs.
30The application is dismissed.
Released: August 18, 2023
Christopher Evans Adjudicator