Recently the Licence Appeal Tribunal (LAT) published its Reconsideration decision in J.M. and Aviva General Insurance (2019 CanLII 51309). Aviva sought a reconsideration of the original decision (2018 CanLII 141011) claiming that Adjudicator Grant had committed a “significant error of law” that would likely have led to a different decision.
J.M. had been injured in a car accident on August 15, 2015 and received accident benefits from her insurer, Aviva. The parties disagreed over the reasonableness and necessity of a treatment plan in the amount of $21,513.35 for a series of assessments requested by J.M. for a determination of catastrophic impairment (catastrophic). By the time of the dispute, she had exhausted the $50,000 “non-catastrophic” limits for medical and rehabilitation benefits available under the version of the Statutory Benefits Accident Schedule (SABS) applicable at the time.
The issues at the original LAT hearing included: whether the cost of catastrophic assessments should be encompassed under the non-catastrophic limits; whether the proposed assessments were reasonable and necessary; and whether the cost of the proposed assessments was excessive in violation of the SABS?
Several provisions under the SABS contributed to the dispute:
- Section 18(3) establishes the $50,000 limit on Med/rehab benefits and includes the cost of assessments for these benefits.
- Section 25(1)(5) requires an insurer to pay reasonable fees for preparing an application for a catastrophic determination under s.45, including any assessment or examination necessary to make the determination.
- Section 45 sets out the catastrophic determination process and contemplates medical examinations as part of the process.
Aviva argued that catastrophic assessments fell under the $50,000 limits prescribed in s.18. As a result, J.M. had no available funding for the requested assessments. If she was successful in obtaining a catastrophic determination, Aviva was willing to reconsider funding the treatment plan.
Adjudicator Grant rejected Aviva’s arguments. Section 18(5) refers to assessments, “in connection with any benefit or payment to or for an insured person”. He found that the term “in connection with” excludes assessments not directly relate to a specified benefit or payment. Following the Machaj decision from the Ontario Court of Appeal, a claim for catastrophic determination is not a claim for benefits or payment. Section 25 governs funding for catastrophic determinations, and clearly states that the insurer “shall pay” reasonable fees to make the determination, including necessary assessments.
Aviva also claimed that the proposed catastrophic assessments were not reasonable and necessary because there was already enough medical information to make the determination based on its assessments conducted over the course of the claim. In particular, Aviva proposed to rely upon Orthopedic and Psychiatric reports prepared in response to the catastrophic application.
Adjudicator Grant disagreed on two grounds. First, J.M. had suffered a variety of post-accident impairments which could lead to a catastrophic determination under either the Whole Person Impairment or Mental and Behavioral Disorder categories. Multidisciplinary assessments would be required to make a determination under either of these categories. Second, the SABS is consumer protection legislation. To establish a balance of fairness it allows both the insurer an insured the opportunity to reasonably assess the accident-related impairments in dispute. Aviva had freely conducted as many assessments as it deemed reasonable and necessary in denying the catastrophic application. Adjudicator Grant held that J.M. must be provided with the opportunity to obtain a medical opinion from experts of her choosing.
As a result of these considerations, Adjudicator Grant ordered Aviva to fund the treatment plan, excluding a $2,000 claim for “file review” as it was duplicative of amounts claimed for each of the proposed assessments.
Aviva sought a Reconsideration of the decision, claiming that Adjudicator Grant had erred in law by finding that catastrophic assessments were excluded from the $50,000 non-catastrophic limits in s.18 of the SABS and that payment for the assessments was mandatory in certain circumstances.
Vice-Chair Flude reviewed the decision and found that no significant error of law had occurred. He agreed with the reasoning and conclusions presented by the Adjudicator. He presented a “slightly different” approach in the Reconsideration, asking the questions: does the SABS create an obligation to pay for a catastrophic assessment, and if so, does it limit the amount the insurer has to pay in some manner?
Section 25 clearly creates an obligation for an insurer to pay expenses, including assessments where they are necessary. It makes no mention of the monetary limits in s.18. the only limitations it applies are a reasonableness requirement and a $2,000 per assessment cap.
Turning to s.18, while it does set out monetary limits, it does not include funding for the determination of entitlement to enhanced benefits for catastrophically impaired claimants under its scope. As Adjudicator Grant correctly noted, this determination is not “in connection to” a specified benefit or payment. In fact, a claimant might be deemed catastrophic and never demonstrate that subsequent treatment plans for benefits or payments were reasonable and necessary.
Aviva argued that the two sections must be read together. It pointed out that Attendant Care assessments were also mentioned in s.25, but these assessments fell under the $50,000 limits, and concluded the fact catastrophic assessments were not mentioned in s.18 was not determinative.
The Vice-Chair dismissed this argument. First, Attendant Care is a specified benefit or payment under the SABS. Second, and more importantly, interpreting s.18 as urged by Aviva would mean that seriously injured claimants who might end up catastrophic would be forced to hold a significant portion of their allotted med/rehab benefits in reserve (42% in this case) to fund a potential catastrophic assessment rather than use the funds for treatment. Given that two or more years might pass before a claimant was deemed catastrophic, denying access to 40% of the availablefunds could have a devastating impact on potential recovery. This result contradicts the purpose of the SABS.
As a result, Vice-Chair Flude upheld the original decision.
If you have been seriously injured in a car accident and have questions about catastrophic impairment, your entitlement to benefits or assessments, or your claim generally, we are pleased to offer a free consultation. Campisi LLP – “Clients First, Excellence Always!”