V1502 – Treatment Plans Must be Submitted Prior to Expenses Being Incurred

As is confirmed in Section 38(2) of the Statutory Accident Benefits Schedule, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit, or an assessment or examination, if that expense is incurred before the insured person submits a treatment and assessment plan. While it may seem punitive, the Tribunal has confirmed, time and again, that the wording of this section is clear; insurers are, quite simply, not liable to payment of expenses if incurred prior to treatment plan submissions. Factors such as whether the goods and services were reasonable and necessary, whether the adjuster would have approved the plan if it had been submitted, whether the expenses were incurred on a protected account basis, or whether issues of timing or other barriers prevented plan submissions, are repeatedly recognized as being irrelevant to the issue of payment liability.

A recent example of this issue can be found in the decision of K.R and Certas Direct Insurance Company (LAT Tribunal File No. 19-003237/AABS). In this particular case, K.R. was an active young hockey player, with a goal of playing at the NCAA level, when she was injured in a motor vehicle accident; her hockey dreams were derailed due to her accident.

With the support of her orthopaedic surgeon, her physician, and her parents, K.R. chose to register in a private hockey skills training program. The program expense, as totaling $11,865, was paid in advance of the submission of a treatment plan. Certas, in responding to K.R.’s request for reimbursement, considered itself to be not liable to the expense given the absence of prior treatment plan submission.

In her attempt to persuade Certas to pay the claim, K.R. made arguments as follows:

• The program was vocational rehabilitation; it would prevent further deterioration and would allow for return to her pre-accident lifestyle

• In approving the hockey program, Certas would be relieved of otherwise having to pay for continued physiotherapy

• This form of rehabilitation would best accommodate her injury

• Her insurer was notified immediately of the incurred expense which avoided any prejudice

• The program was an atypical kind of rehabilitation; the provider was not HCAI registered and having an OCF-18 submitted was not a straightforward process

In rendering her decision on this matter, Adjudicator Kimberly Parish reflected that the Schedule codifies obligations that both the insurer and the insured are required to follow. She acknowledged that to require one party to strictly adhere to their obligations while allowing the other party to abandon theirs would be a breach of natural justice and fairness. In so finding, she confirmed as follows:

“The language within s.38 (2) of the Schedule is clear. Therefore, due to K.R.’s non-compliance with s.38 (2), the rehabilitation benefit in the amount of $11,865.00 is not payable. I have made no finding on whether this expense is reasonable and necessary.”

This decision highlights the absolute need for treatment plans to be submitted prior to medical, rehabilitation, assessment or examination expenses being incurred; the requirement for treatment plan submission exists regardless of the claim circumstances. If there is an issue in having a plan submitted, we encourage transparency and communication with adjusters prior to expense being incurred. In some cases, adjusters may be willing to waive the treatment plan requirement. In others, adjusters may be able to work with the rehabilitation team and family to assist in the treatment plan submission process. It is otherwise clear that an insurer that rejects an expense due to lack of a prior treatment plan submission will not be overcome at the Licence Appeal Tribunal.

Official Decision:

19-003237, K.R. and Certas Direct Insurance Company

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