Insurer Does Not Respond in Required Time – Insured Granted Costs for Services Claimed

February 08, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

R.H. v T.D. Insurance - Minor injury guideline; access to treatment; multiple OCF 18 submitted by insured with differing plans and amounts;

R. H. v TD Insurance
Date of Decision: January 17, 2017

Heard Before: Adjudicator Claudette Leslie

R.H. was injured in car accident on July 20, 2014. She submitted a Treatment and Assessment plan dated November 3, 2015, to TD, outlining various medical and rehabilitation services allegedly for costs totalling, $3,589. 40. TD alleges that R.H. did not submit a valid, signed Treatment Plan in the amount of $3,589.40.  TD also claims that R.H.’s impairments are minor and fall within the MIG treatment framework and that R.H. has already exhausted the medical benefit limits under MIG.

R.H. claims that TD did not respond to the Treatment Plan within the required time and is therefore obligated to pay the costs claimed for services.

Upon reviewing the evidence, the Arbitrator found that R.H. submitted a valid Treatment Plan to TD claiming costs of $369.47, and that TD did not respond to R.H. within the statutorily mandated time and, regardless of the nature of R.H.’s injury, TD is required to fund the submitted Treatment Plan.  The Arbitrator also determined that TD is prohibited from taking a position that R.H.’s impairment falls within the MIG treatment framework.

Issues in Dispute:

1. Is R.H. entitled to a medical benefit in the amount of $3,589.40, less any amounts paid in a treatment plan dated November 3, 2015, and denied by TD on November 25, 2015?
2. Is R.H. entitled to interest on any overdue payment of benefits?

Evidence/Analysis:

The evidence submitted for this hearing shows that there are three, substantively different versions of the November 3, 2015 OCF-18: The OCF-18 submitted for Case Conference purposes by R.H.; the OCF-18 submitted for the hearing by R.H.; and the OCF-18 submitted for the hearing by TD.

Did R.H. submit a signed, valid OCF-18?  Section 38 of the Schedule requires that a Treatment and Assessment plan must be signed by the insured person unless the insurer waives that requirement. TD submits that R.H. failed to provide a valid, signed copy of the Treatment and Assessment plan in dispute; and therefore in keeping with s.38, it is not liable to pay any incurred expenses outlined in the plan.

TD sent a letter to R.H., dated November 25, 2015, in which it responded to a Treatment Plan it received, dated November 3, 2015. In the letter, TD denies the claim and informs R.H. that it requires her to attend insurer examinations. TD’s letter does not refer to its allegations that the Treatment Plan is not signed. The signature issue is not raised as a concern, until allegedly at the August/September 2016 Case Conference.

TD’s November 25, 2015 response, including its silence on the signature issue, persuades the Arbitrator that TD accepted the submitted Treatment Plan. TD’s silence on the signature issue, on which R.H. relied on, constitutes TD’s waiver of the section 38 requirements.

Did R.H. submit a Treatment Plan to TD claiming benefits of $3,589.40?  TD argues that, to date, there has been no proof presented indicating that a signed OCF-18 claiming benefits of $3,589.40 was submitted. The Arbitrator noted there are three versions of a November 3, 2015 Treatment Plan related to this hearing.

• The OCF-18 submitted for Case Conference purposes . This version lists proposed goods and services and related costs as:

1. reassessment - $200.00;
2. chiropractic, active, physical therapy as $2,236.00; and
3. massage therapy as $1,153.40, totalling $3,589.40.

Both the health provider’s and R.H.’s signatures are missing from the document;  the names of 5 health care service providers appear in part 11 of the document; and unlike the version later submitted by R.H. for this hearing, health provider notes appear in word processed format as opposed to handwritten.  It appears 20 sessions each of the physical, chiropractic and therapy treatment are recommended.

• The OCF-18 submitted for the hearing by R.H. This one is similar to the above noted version, this document also proposes the goods and services as noted above; except
  1. the amount for chiropractic, active, physical therapy is noted as $111.80; and
  2.  massage therapy as $57.67, totalling $369. 47. 

The number of treatments appears to have been manually changed in hand-written format to reflect 20.  The initial number of treatments noted is made indecipherable. The health provider’s signature appears on page 2 of the form; R.H.’s signature appears on page 4; and health care provider’s notes appear in handwritten format throughout.  Similar to the version noted above, 5 health care service providers are listed.

• The OCF-18 submitted for the hearing by TD. This document appears to be a word-processed transcription of the document submitted by R.H., with noteworthy differences, including the appearance of  the health provider’s handwritten notes in a word-processed format. Similar to the initial OCF-18 submitted for Case Conference purposes,
  1. the total costs claimed for goods and services is $3,589.40.  However, unlike the above, the goods and services are reflected as
  2. total body assessment -$200.00;
  3. therapy, multiple body sites - $2,236.00; 
  4. therapy, multiple body sites $1,153.40;

Only 2 health care services providers’ names appear in part 11 of the document; and neither the health provider’s nor R.H.’s signature appear in the document.

Upon reviewing all of the evidence the Arbitrator found that the only valid OCF-18 is the one submitted by R.H. for this hearing, claiming goods and services in the amount of $369.47.

Did TD Comply with Section 38 of the Schedule? 

It is TD’s position that even if the Treatment Plan was valid, R.H.’s injuries fall within the MIG. Further, TD takes the position that since R.H. has exhausted treatment funding up to the MIG limit, R.H. is not entitled to payment of the claimed benefit.

R.H. argues that the insurer did not comply with section 38 of the Schedule by failing to respond to the treatment/assessment plan within 10 business days, as required by the Schedule.

The Arbitrator reviewed the Schedule and determined that TD’s response date exceeds the 10 business-day requirement. Therefore, TD is in breach of section 38(8), (9) and the consequences of section 38(11) clearly applies in this case. 

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.