Volume. 4 Issue. 45 – November 18, 2020
A novel medical/rehabilitation funding limit conundrum before the LAT where treatment approvals technically exceed available limits, with the Tribunal employing a creative interim solution. The parties were left to sort out a potential ultimate resolution.
No Authority to Order Amount Above the Funding Limit
Take It to the Limits – In 19-002494 v TD, the Tribunal considered a case wherein the Respondent had paid over $34,000 in medical benefits and had approved a further $14,000 that had yet to be incurred. At issue was the fact that the Tribunal’s decision on the substantive matters in dispute would exceed the $50,000 medical benefit limits were they to be incurred on top of the paid/approved amount in excess of $48,000. With the Tribunal ultimately granting entitlement that would exceed the limit, the Tribunal therefore needed to rule on whether the Applicant could forgo the $14,000 approved in favour of the benefits sought at hearing. Noting that the Applicant has not applied for a CAT determination, the Tribunal agreed that the Applicant is entitled to change her mind and forgo treatment that was previously approved.
However, that was not the end of the story. The Tribunal noted that given the potential excess, there was in fact no authority to order the Respondent to pay any amount above the funding limit. To that end, “the respondent’s commitment to pay for treatment should be considered against the applicant’s funding limit on treatment when assessing whether further treatment is payable.” Therefore, “absent any evidence showing that the treatment plans were withdrawn, I can only order the respondent to pay a maximum of $1,433.32 in reasonable and necessary treatment. It is not my role to pick which reasonable and necessary benefits are payable over others. Instead, I will leave that to the parties to resolve on their own, with my opinion on the application of the funding limit on approved but unconsumed benefits, as provided above.”
Degrees of LATitude
The purpose test is considered in a tire change incident, while causation is put to the test in a slip and fall incident where the Applicant had pressed the FOB to unlock the doors as he approached his vehicle.
Unreasonable Expectations – In 19-007921 v Wawanesa, the Applicant, who seriously injured his back while removing his winter tires and installing the summer tires, contended that this activity fell within the definition of “accident” under the Schedule. The Tribunal focused its analysis on “whether the action of carrying out regularly scheduled maintenance falls within the definition of ‘accident’.”
The Tribunal noted that in 2007 the Supreme Court of Canada in Vytlingam confirmed that “insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer.” This “has resonated most comprehensively through Ontario’s no-fault benefits jurisprudence…There appears to have been a sea-change in the approach of adjudicators.”
The question therefore addressed was “what were the reasonable expectations of the parties? Is it reasonable to expect insurance coverage simply because a motor vehicle was involved in some manner in the injury?” The Tribunal concluded that “it was not within [the Applicant]’s reasonable expectations that he was covered by his automobile insurance policy when he parked his car in the driveway and proceeded to change the tires.” In this instance, the vehicle had been disabled due to the removal of the tires, and “it is his expectation of having insurance coverage while performing maintenance that is in issue and that I find not to be a reasonable expectation.”
FOB Is the Key – In 18-006988 v Wawanesa, the Tribunal considered whether the Applicant, falling while in the process of getting into his vehicle was involved in an “accident” as per the Schedule. In his Examination Under Oath, he indicated that as he approached his vehicle, he pressed the FOB to unlock the doors, and when he reached out to open the door, he slipped and fell due to the snow covered conditions. He could not remember whether in fact he had ever touched the car before falling. Counsel for the Applicant contended that the “FOB is an extension of the car and replaces the need to physically touch the car and insert a key to unlock the door.”
The Tribunal determined that “the incident consisted of one continuous chain of events with no intervening act to break the chain of causation, which began when he unlocked the vehicle with the FOB and walked toward the vehicle to re-enter it.” The Tribunal found the use of the FOB to be relevant, indicating that he had clearly moved from the act of “walking through the parking lot” to the process of “getting into the vehicle.” Further, the Tribunal was satisfied that one direct cause of the accident was snowy conditions, the second being “as a result of the use and operation of the vehicle that was parked in that gas station under those conditions.”
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