Articles & News

By: Cary Schneider, Partner, November 27, 2023

Introduction

Since the changes to the accident benefits Schedule commenced on June 1, 2016 we have been operating on the premise that insureds only have entitlement to medical and rehabilitation benefits for a maximum hard cap of five years for non-catastrophic claims. For some insureds, this period of entitlement is not sufficient to receive the treatment which they feel they need. This is particularly true for insureds who fall within the gray zone as to whether they have suffered a catastrophic injury who still find their treatment to beneficial. Some insureds are delayed finding out whether they are entitled to therapy as their case winds through the Tribunal system and cannot afford to pay for treatment pending receiving a decision.

A trio of decision released in 2023 have slightly cracked this hard cap and allows for treatment and assessments to proceed after the 5 year statutory cap (“statutory cap”). In short, if a treatment plan is submitted before the statutory cap it is payable in full if it is found to be reasonable and necessary; even if it not incurred until after the statutory cap.

The Law

In Han v. Wawanesa Mutual Insurance Company, 2023[1] (“Han”) the issue in dispute was whether an assessment and treatment submitted before the statutory cap for medical benefits would be payable if it would not been incurred until after the latter time period.    This particular case specifically dealt with a physiatrist assessment that was in dispute but the Adjudicator expanded his analysis to include treatment as well.

The adjudicator found that a treatment plan that is submitted before the expiry of the five year statutory period is payable if was reasonable at the time that it was submitted.    It has been determined by the courts that to require an insured person to pay for treatment as a precursor to commencing an application to the Tribunal would “disadvantage the impecunious”.   The Adjudicator found that once a treatment plan is submitted an insurer has 10 days to approve the treatment plan as a whole.   An insurer cannot approve part of a treatment plan up for therapy up until the 5 year mark and then deny the balance of the treatment thereafter.   Similarly, if a treatment plan is denied before the five year statutory period and later found to be payable then an insurer is obligated to pay for same regardless when it is actually incurred.

“If the OCF-18 is found to be reasonable and necessary, the issue is not when Wawanesa will have to honour its obligations to fund treatment under the Schedule at some point in the future, but when should it have honoured its obligations in the past.

…

“Rather, the only way to resolve any apparent absurdities is to see a treatment approval as an undertaking to pay for the whole course of treatment even though it terminates beyond the 260 week period. … In effect, the Tribunal decision is stating that the insurer should have approved the plan within 10 days as required by the Schedule”.

The Tribunal subsequently followed the reasoning in Han in  Picken v. Aviva Insurance Company, (2023)[2]  and in the Reconsideration decision Tyner v Certas Home and Auto Insurance Company, (2023)[3] (“Tyner”).   The latter case deals with four treatment plans that were ultimately considered to be reasonable and necessary but not incurred within the 5 year statutory period.  The Reconsideration Adjudicator found that the reasoning in Han is “persuasive” and that the original Adjudicator has made an error in law by not considering it.  The fact that this is a Reconsideration decision gives this statement of the law a more binding effect on further Adjudicators.

“I find the Tribunal erred in not considering the Han decision.  Han states that the intent of the legislation would not have permitted a situation wherein a dispute could be filed within the prescribed 2-year time period but be ultimately un-payable as a result of the dispute resolution process being longer than 5-years post-accident. While the respondent is correct in that Han is not binding, its reasoning is persuasive and consistent with the consumer protection nature of the Schedule. In not considering this case law before it, the Tribunal made an error in law in paragraphs 26 and 27 which led it to not properly consider the issues before it on the proper merits.”

Practice Points and Conclusion

As a practice point for insurers, care should be afforded when adjusting treatment plans that are submitted shortly before the statutory cap is about to expire.     For example, if a treatment plan for a chronic pain management program is submitted 15 days before the statutory cap expires, a letter denying the treatment plan on the basis that it cannot be consumed with the requisite amount of time will not be found to be a proper denial.   Any treatment plan submitted within the statutory cap ought to be considered potentially payable and adjusted like any other.

For claimant counsel, a client’s file should be properly analysed as the statutory cap approaches.    If a client has been regularly attending for physical / psychological therapy then consideration should be given for submitting a treatment plan for further substantive care before the time limit expires.    If the client has not undergone a chronic pain management program or a different form or therapy then this is the last chance to submit a treatment plan for same.    Perhaps this is the right time to pursue vocational training, home modifications, or a gym membership.

With that being said, if the client has not attended for therapy for a couple of years it will be difficult to establish that the treatment plans submitted on the cusp of the statutory cap period are reasonable and necessary.     The more substantive the pattern of treatment the more likely the chances for success.

In conclusion, the five year statutory period for medical and rehabilitation benefits is not a hard cap.    Insurers should be cognizant to adjust every treatment plan as if it potentially payable in full within 10 days of it being submitted.   Importantly, claimant counsel should recognize that this is the last opportunity for a worthy client to obtain the treatment she needs.

[1] Han v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-014475 AABS

[2] Picken v. Aviva Insurance Company, 2023 ONLAT 21-001978/AABS

[3] Tyner v Certas Home and Auto Insurance Company, 2023 CanLII 91439 (ON LAT)