News Update – January 18, 2023

“Incurred” Medical Benefits Seven Years Post MVA Payable

Five Year Medical Limit Superseded – Injured in an August 2016 MVA, the Applicant Han, in 21-014475 v Wawanesa applied to the Tribunal for entitlement to an OCF-18 for a physiatry assessment in November 2021, being within two years of the denial, however well beyond the five year entitlement period prescribed by s.20 of the Schedule. These facts “highlight tension between various provisions of the Schedule and the interpretation of those provisions in the case law”.

Case law has established that “an insured person does not have to pre-pay for treatment, that is, incur it, before proceeding to the Tribunal.” However s.20 of the Schedule provides that “no medical … benefit is payable for expenses incurred … more than 260 weeks after the accident.” Wawanesa brought a preliminary issue, contending that s.20 provides an “absolute bar” to the claim for the assessment. Specifically in this matter, were the hearing to proceed, it would obviously be well into 2023 before a substantive decision was released, estimated as seven years post MVA.

The Tribunal however found that “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. Such an interpretation is in keeping with the intent of the Schedule to ensure treatment is made available to those in need, regardless of ability to pay and delaying payment does not allow to Wawanesa to escape its obligations, even if the denial is in good faith.” Han “had five-years from the date of an accident to seek treatment. That treatment was denied, so she had two years to appeal to this Tribunal. Her right to payment for that treatment did not expire with the lapse of 260 weeks.” Were one to accept the positioning of Wawanesa, “the whole appeal process is rendered nugatory because the Tribunal’s decision will be rendered after 260 weeks. I do not accept that the Legislature intended to reduce the 260 week appeal period, in practical terms, to 260 weeks less the time it takes for the Tribunal to process a claim to resolution.”

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Further, when an OCF-18 denial is appealed, “the effective date for the Tribunal’s consideration is the date of denial of the treatment plan, not the date of the Tribunal decision.” If Han is ultimately successful “the Tribunal is determining that Wawanesa should have approved the treatment plan in December 2019, approximately 21 months before the lapse of the 260 weeks.” Therefore, once the Plan was denied “another timetable kicked in that supersedes the 260 weeks. The applicant had 2 years to file an application with the Tribunal and the Tribunal process would then run its course.”

Concluding, the proceeding “is about whether Wawanesa should have approved a treatment plan in December 2019. If the Tribunal finds that it should have, then it will be obliged to pay for the treatment plan once incurred in the same manner as if it had approved the plan in the first place. It cannot escape that liability because the appeal process affords the applicant two years to appeal, followed by the time to process that appeal.”

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