Assessments Not Submitted Until Date of Hearing - All Claims Denied - CanLII 33655 (ON LAT 16-001756)

June 29, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

GS v Aviva Insurance Company of Canada, 2017 CanLII 33655 (ON LAT 16-001756)

Date of Decision: May 8, 2017
Heard Before:  Adjudicator D. Gregory Flude

Entitlement to Medical Benefits: There is no need to assess that question as no assessments or Form 1 were submitted in time.

GS was injured in a motor vehicle accident on January 1, 2014. She is in a dispute with Aviva over her entitlement to SABS. GS seeks two categories of benefits: attendant care benefits and medical and rehabilitation benefits. Aviva has denied the attendant care benefits on the basis that GS did not apply for them in a timely manner. It has denied the medical and rehabilitation benefits because, in its view, they are not reasonable and necessary given the nature and scope of GS’s injuries.

Issues:

1. Is GS entitled to receive a medical benefit in the amount of $2,765.00 denied by Aviva on August 12, 2015?
2. Is GS entitled to attendant care benefits in the amount of $1,283.43 per month for the period January 1, 2014 to July 24, 2015?
3. Is GS entitled to attendant care benefits in the amount of $457.26 per month for the period July 25, 2015 to January 1, 2016?
4. Is GS entitled to receive a cost of examination in the amount of $823.69 for an attendant care assessment, recommended by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated July 29, 2015, denied by Aviva on August 21, 2015?

RESULT

The Arbitrator found that GS is not entitled to any of the benefits in issue in this hearing.

Both parties submitted written submissions with medical documentation. GS’s submissions contain a number of allegations of fact. None of these submissions were supported by evidence. The Arbitrator noted that submissions are not evidence, and he would not be considering any factual assertions made in the submissions without supporting evidence.

GS relies on the decision of the Supreme Court of Canada in Smith v. Co-Operators in which The Court ruled that, in the case of a denial of benefits, an insurer must set out the insured’s rights to dispute the denial in clear and approachable terms understandable by an ordinary person. In the current case, there is no denial since there is no application until January 28, 2016. GS does not allege that she was misled by Aviva or unaware of her rights. She retained a professional to carry out an assessment and was aware that she could make such a claim. Indeed, the grounds alleged are that the professional inadvertently failed to apply in a timely manner, not that GS was unaware of her right to apply.

The Arbitrator reviewed the law and the evidence, and noted that there is no treatment plan or assessment provided to support the claims for physiotherapy dated in 2015. The only treatment and assessment plan submitted by GS in evidence was dated November 2016. The Schedule requires that claims be applied for on a properly completed Form1.   The Form 1 was not submitted until January 28, 2016 well past the date when they were requested, and that the Schedule specifies.  On that basis, the Arbitrator cannot assess the claim.  The Arbitrator then reviewed the claim for the separate issue of attendant care benefits for payment of the assessment of attendant care needs carried out by Ms. Kim on July 25, 2015. The treatment and assessment plan was submitted to Aviva on August 6, 2015. Aviva makes two submissions with respect to this assessment. It first argues that it is not liable to pay for any treatment or assessment expenses that were incurred before the date the treatment and assessment plan was submitted to it. It also takes the position that it was not reasonable and necessary for GS to undergo this assessment given the nature of her injuries.

The Arbitrator noted that while there may be emergencies where treatment is urgently needed and it would be seriously detrimental to wait for the approval process to run its course, this situation does not fall within that exception in the Schedule.  The assessment in question was not conducted until 20 months following the accident, purported to make findings with respect to needs over the prior 20 months, and then reduced the amount of the attendant care needed from the date of the assessment forward. The reduction indicates not a developing emergency, but an ongoing recovery.

On the basis of the evidence the Arbitrator found that s. 38(2) of the Schedule acts as a complete bar to recovery for the attendant care assessment. Considering this finding, there is no need to consider if the assessment was reasonable and necessary.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.