Insurer Corrects Defect in Denial of Benefits Letter - Applicant and Guarantee 2018 CanLII 39446 (ON LAT17-003906)

June 18, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Guarantee 2018 CanLII 39446 (ON LAT17-003906)

Date of Decision: March 12, 2018
Heard Before: Adjudicator Thérèse Reilly

MEDICAL BENEFITS: are treatments reasonable and necessary; was denial of benefits valid; defendant corrects erroneous letter; applicant fails to show requested treatments are reasonable or necessary

The applicant was injured in a car accident on September 29, 2014 and sought the cost of an assessment for driver anxiety and the cost of a medical benefit for a hydrotherapy program pursuant to the SABs.  The applicant asserts Guarantee did not validly deny the treatment plans and the applicant is entitled to payment of both treatment plans as they are both reasonable and necessary.

Guarantee asserts that its denial of the assessment is valid. Alternatively, if the denial of the assessment for driver anxiety is found to be defective, the defect was cured when Guarantee delivered a denial dated July 14, 2015. Guarantee further asserts that both treatment plans are not reasonable and necessary.

ISSUES

1. Is the applicant entitled to the cost of an assessment for $1,149.88 for driver anxiety pursuant to a treatment and assessment plan (an OCF 18 for Driver Anxiety) submitted June 3, 2015?
2. Is the applicant entitled to a medical benefit for $2,744.37 for a hydrotherapy program submitted August 11, 2016?
3. Is the applicant entitled to interest on any overdue payments?

RESULT

1. Guarantee’s denial of the OCF 18 for Driver Anxiety on June 17, 2015 was defective. However, the defect was cured by Guarantee’s denial by letter dated July 14, 2015. The applicant is not entitled to payment of the OCF 18 for Driver Anxiety.
2. The applicant raised the validity of the denial of the OCF 18 for Hydrotherapy as an issue. However, the applicant advanced no evidence to support that claim. As such, no finding is made in that regard.
3. The applicant is not entitled to payment of the OCF 18 for Hydrotherapy treatment.
4. The applicant is not entitled to interest as no benefits are overdue.

OCF 18 for Driver Anxiety – Is the denial valid?

On June 3, 2015, the applicant submitted the OCF 18 for Driver Anxiety. The applicant asserts in their submissions that she continues to suffer from anxiety and post-traumatic stress disorder syndrome (PTSD) symptomology which continues to impair her ability to drive safely. On June 17, 2015, Guarantee sent a letter to the applicant advising the applicant that it had received the OCF 18 for Driver Anxiety, that it was denying payment, and that a physiatry paper review was required and would be completed by a a physiatrist.

The applicant claims Guarantee failed in its denial letter of June 17, 2015[3]:

1. to provide any medical reasoning or explanation of benefits to explain the medical reasoning for the denial of the OCF 18 for Driver Anxiety as required pursuant to section 38 (8) of the Schedule and,  
2. to provide any medical or other reasons for requiring the applicant to attend a section 44 insurer examination as required under section 44 (5) of the Schedule.

The June 17, 2015 letter states Guarantee received the treatment plan, does not agree to fund the treatment plan and requires a section 44 examination. No medical or other reasons are outlined in the letter.

The Adjudicator  agreed that the June 3, 2015 notice was defective because Guarantee failed to provide any medical or other reasons why it would not fund the payment of the OCF 18 for Driver Anxiety or the reasons for the insurer examination as required by section 38 (8).  Section 38 (8) states that within 10 business days after the insurer receives the treatment and assessment plan, the insurer must give the insured person a notice that identifies the goods, services described in the treatment and assessment plan that the insurer agrees to pay for, outline what it does not agree to pay for, and outline the medical reasons and other reasons why it does not consider the treatment and assessment plan to be reasonable and necessary.

Under section 44 (5), if the insurer requires an examination, it is to arrange for the examination at its expenses and shall give the applicant a notice setting out the medical reasons and any other reasons for the examination.

Guarantee states that if there is a finding that the June 17, 2015 letter was deficient, the deficiency was cured by its letter of denial dated July 14, 2015.

The Adjudicator agreed with Guarantee that the defective notice was cured by the July 14, 2015 letter of denial.

The parties disagree on the consequences of a defective notice. As the initial refusal was deficient, the applicant asserts that Guarantee must be prohibited from determining that the treatment and assessment is not reasonable and necessary. Guarantee states that the applicant has misinterpreted the consequence stated in section 38(11)(2) of the Schedule.

Section 38(11)(2) provides that if an insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the insurer “shall pay for all goods and services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the applicant and ending on the day the insurer gives a notice described in subsection (8)”.

Guarantee states that any obligation by the insurer to pay for goods and services applies to goods and services that are incurred starting on the 11th day after receiving the application and ending on the date of the proper notice. The Adjudicator agrees with Guarantee that the consequence of “curing” a defective notice, based previous decisions, relates to the obligation of an insurer to pay for incurred goods and services during the relevant time period set out in section 38 (11) (2) and not to “deeming” a treatment plan reasonable and necessary.

The applicant did not invoice Guarantee for any goods and services under the OCF 18 in dispute. No evidence was advanced by the applicant to show that the OCF 18 in dispute is incurred. Applying M.F.Z., and in the absence of evidence that the OCF 18 is incurred, Guarantee is not obliged to fund the OCF 18 for Driver Anxiety.

Is the OCF 18 for Driver Anxiety Reasonable and Necessary?

The applicant bears the burden to establish on a balance of probabilities that the disputed treatment plan is reasonable and necessary. The Adjudicator found the applicant has not met her burden of proof. In her submissions, the applicant presents little to no medical evidence in support of her position that the disputed OCF 18 is reasonable or necessary.

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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.