Licence Appeal Tribunal File Number: 22-012584/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:
Roberto Testa Castillo
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATORS:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Roberto Testa Castillo, Applicant
Mariana Slomyanski, Counsel
For the Respondent:
Nisaa Khan Counsel
HEARD:
By way of written submissions
OVERVIEW
1Roberto Testa Castillo, the applicant, was involved in an accident on November 18, 2017, 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, Intact Insurance Company (“Intact”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in this application because no medical or rehabilitation benefits are payable for expenses incurred more than 260 weeks after the accident, as per section 20(1)(a) of the Schedule?
RESULT
3The application is dismissed. The applicant has not met his evidentiary burden to establish that this application is not time-barred.
ANALYSIS
Background
4On November 17, 2022, HM Medical Network Ltd submitted an OCF-18 dated November 17, 2022 in the amount of $2,821.60 on Health Claims for Auto Insurance (“HCAI”). This was the first OCF-18 submitted for this claim. On November 18, 2022, HM Medical Network Ltd submitted an OCF-18 dated November 1, 2022 in the amount of $2,200.00 on HCAI.
5On November 29, 2022, the respondent informed the applicant that these treatment plans were not payable as no medical benefit is payable for expenses incurred more than 260 weeks after the accident and this deadline had passed on November 12, 2022.
Parties’ positions
6The respondent submits that the applicant is barred from proceeding to a hearing for all the benefits claimed in this application as no medical or rehabilitation benefits are payable for expenses incurred more than 260 weeks after the accident, as per section 20(1)(a) of the Schedule. According to the respondent, 260 weeks have passed since the date of the subject accident. Furthermore, none of the exceptions outlined in section 20(1)(2) apply as the applicant has not suffered a catastrophic impairment and is not entitled to optional benefits. Moreover, the applicant was over 18 years of age at the time of the accident and would not be subject to the timeline outlined in section 20(1)(b) of the Schedule.
7The applicant did not file submissions or evidence with the Tribunal. Both parties were in attendance for the case conference conducted on July 17, 2023. A written hearing was scheduled, and written hearing submission deadlines were set. The applicant did not request an extension of time to file his submissions. The applicant did not respond after being served with the respondent’s submissions.
ANALYSIS
8Pursuant to section 20(1) of the Schedule and subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,
(a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident; or
(b) after the insured person’s 28th birthday, in the case of an insured person who was under 18 years of age at the time of the accident.
9Subsection 20(2) states that the time limits set out in subsection (1) 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 optional medical, rehabilitation and attendant care benefits under paragraph 4 of subsection 28 (1) or catastrophic impairments benefits under paragraph 5 of subsection 28 (1).
10The accident took place on November 18, 2017. At the time of the accident, the applicant was 66 years old. There has been no determination that he sustained a catastrophic impairment, nor evidence that he purchased optional benefits. Therefore, the exceptions under section 20(2) do not apply. By operation of section 20(1), the last day that the applicant could have claimed the incurred expenses for this accident was November 12, 2022.
11The OCF-18 in the amount of $2,821.60 is dated November 17, 2022 and was prepared after November 12, 2022. As such, this treatment plan would not be payable even if it was incurred because, no expenses would be payable beyond 260 weeks.
12In terms of the OCF-18 in the amount of $2,200.00, I note that it is dated November 1, 2022. If this treatment plan was incurred prior to the 260 weeks after the accident, then the respondent would be liable to pay for it if the applicant demonstrated that it is reasonable and necessary under section 15 even though it was submitted on November 18, 2022. The wording in section 20(1) specifically says incurred, not submitted. However, there is no evidence submitted by the applicant that this treatment plan was incurred prior to the November 12, 2022 deadline or that it is reasonable and necessary.
13Therefore, I find that the respondent is not liable to pay for either of the OCF-18s as there is no coverage pursuant to section 20(1).
ORDER
14The application is dismissed.
Released: September 15, 2023
Tavlin Kaur
Adjudicator