Accident benefits not required before a claimant can access Licence Appeal Tribunal: case

To rule otherwise would leave claimant without funds at mercy of insurer's goodwill, court says

Accident benefits not required before a claimant can access Licence Appeal Tribunal: case

In Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, the respondent, who was in a motor vehicle accident in 2013, brought an application for accident benefits that sought medical and rehabilitation benefits from her motor vehicle insurance company under the Statutory Accident Benefits Schedule, O. Reg. 34/10, effective Sept. 1, 2010. The respondent submitted four chiropractic treatment plans between October 2016 and August 2017.

The insurer denied the treatment plans — Glavan TP1, Glavan TP2, Viglasky TP1 and Viglasky TP2 — on the basis that they were not reasonable and necessary to treat the respondent’s accident-related injuries. When the respondent brought the matter before the Licence Appeal Tribunal, the adjudicator ordered that three of the four disputed treatment plans were payable, with interest, pursuant to the Schedule. Upon reconsideration, the adjudicator amended the order and acknowledged that he committed an oversight when he failed to direct the payment of one of the treatment plans.

On appeal, the insurer contended that there was no evidence of expenses that the respondent incurred before the hearing. The insurer also submitted that the adjudicator was functus officio and that the tribunal lacked the jurisdiction to order the insurer to pay the incurred expenses following the hearing’s completion.

The Ontario Divisional Court denied the insurer’s appeal of the tribunal’s decision and reconsideration judgment. The court found that Glavan TP1 and Viglasky TP1 were payable under s. 38(11)(2) of the Schedule, beginning on the 11th business day after they were submitted, plus interest under s. 51 of the Schedule; Glavan TP2 was reasonable, necessary and payable, plus interest under s. 51; and Viglasky TP2 was reasonable and necessary, with any treatment incurred after Aug. 30, 2017, payable with interest under s. 51.

The court ruled that payment of these treatment plans would be due when incurred as defined in the Schedule, while interest would be payable once the treatment plans have been incurred and payment becomes overdue under s. 51. The court then awarded the respondent costs of $5,000 to be paid by the insurer.

The court said that if it agreed with the insurer’s argument about benefits increment before a claimant could access the tribunal, a claimant would have to fund disputed treatment plans before filing an application. The insurer’s interpretation would force a claimant with limited or no access to funds to only pursue payment of treatment that they can afford to pay on their own and would leave a claimant at the mercy of the insurer’s goodwill. In effect, this would amount to the power imbalance that the legislation strives to prevent.

The court ruled that the doctrine of functus officio did not apply in the way that the insurer suggested. The court found that the claimant still needed to incur the benefits mentioned in the disputed treatment plans before they would become payable and that the insurer could still choose to invoke the same objections against submitted invoices and incurred expenses that it could have raised if it had initially approved the treatment plans.

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