N.P. v Western Assurance Company, 2020 ONLAT 19-011629/AABS & 19-012841/AABS

Full Decision

Counsel for the Applicant: Charles Gluckstein and Gabriel Lessard
Counsel for the Respondent: Lora Castellucci

The Respondent insurer, Western Assurance Company, denied a treatment and assessment plan for an in-home re-assessment of attendant care benefits (“ACBs”) and housekeeping benefits (HKs). The reason for the denial was that Applicant’s claims were statute-barred pursuant to section 56 of the Statutory Accident Benefits Schedule (the “SABS”) as a result of a previous denial in 2014, which resulted in a subsequent FSCO application and partial settlement in 2016. The Adjudicator found in favour of the Applicant. The Adjudicator concluded that the Applicant was entitled to the assessment and that her benefits were not statute-barred.

The Applicant sustained significant injuries as a result of a motor vehicle accident in 2013 and was accepted as catastrophically impaired by the Respondent. In 2014, she was denied ACBs and HKs following a section 44 occupational therapy assessment. The Applicant applied to FSCO to dispute the denial. Prior to the hearing, the parties reached a settlement of the issues in dispute and entered into a “Partial Final Release” which stated that they had reached an agreement of ACBs and HKs “only to June 28, 2016.”

In 2019, the Applicant submitted a treatment and assessment plan in the amount of $1,459.16 for a re-assessment of her AC and HK needs. The Respondent denied benefits on the basis that she was denied ACBs and HKs in 2014 and is therefore statute-barred.

The Applicant applied to the LAT and maintained that the 2014 denial was resolved by partial settlement only to June 28, 2016, and that section 42(9) of the SABS allow an insured to submit a new ACB assessment any time there are changes that would affect the amounts of benefits payable. The Applicant submitted that she had not missed a limitation period as she had applied to FSCO following the 2014 denial, and the LAT following the 2019 denial, both within two years. Furthermore, the Respondent had not provided a Settlement Disclosure Notice (“SDN”) pursuant to section 9.1. of O. Reg. 664 which is required when a settlement permanently ends entitlement to one or more benefits.

The Respondent argued that the 2014 denial remained in effect and that the “Partial Final Release” did not waive the limitation period, that the lack of a SDN did not imply a waiver and that the Release did not state that future ACBs and HKs were available. The Respondent also argued that the Applicant had not established that there were changes that would affect the amount of the benefits payable pursuant to section 42(9).

The Adjudicator agreed with the Applicant. The Adjudicator found that the Partial Release “clearly states, on numerous occasions in bold and underlined font, that the Partial Final Settlement was for ‘attendant care benefits and housekeeping and home benefits only to June 28, 2016”’, and that it did not indicate that the Applicant was abandoning future claims. Furthermore, the Adjudicator confirmed that a SDN would have been required and that the lack of a SDN indicates that the Respondent did not believe it had permanently ended the Applicants right to “purse entitlement to ACBs and HKs in the future as her circumstances and conditions changed, for better or worse.”

The Adjudicator further confirmed that there is no limit to the number of Form-1s or assessments for ACBs and HKs that a catastrophically impaired insured can submit, provided there is evidence of change pursuant to section 42 of the SABS. The Adjudicator disagreed with Western’s submission that the Applicant had failed to provide evidence of changes that would affect her amount of benefits. The Applicant had provided a letter from her occupational therapist, case management reports and an orthopaedic assessment report. The medical evidence confirmed lingering pain, and life changes, such as a new job, that would justify a re-assessment of her needs.

The Adjudicator concluded that the Applicant was entitled to payment of the OCF-18 in the amount of $1,459.16 for the in-home occupational therapy assessment as it is reasonable and necessary.

Written by

Gabriel joined Gluckstein Lawyers as an articling student in 2017 and is a graduate of the J.D. program from the Faculty of Law at Queen’s University.

As a law student, Gabriel volunteered at the Concordia Student Union Legal Information Clinic where he provided legal information to Concordia undergraduate students. He was also significantly involved at the Queen’s Legal Aid Clinic. As a student caseworker at Queen’s Legal Aid, Gabriel represented clients at the Landlord and Tenant Board, the Social Benefits Tribunal and the Criminal Injuries Compensation Board. Gabriel also volunteered as a group leader where he trained and supervised 10 volunteer student caseworkers.