Volume. 6 Issue. 35 – September 7, 2022

This week the Tribunal considers two distinct instances wherein the Respondent, despite a clear breach of s.38(8) notice requirements, is not required to pay any of the associated treatment in accordance with s.38(11) of the Schedule. In ‘Timing is Everything’ the Tribunal confirms there need be a “temporal component” involved, although there seems no need for treatment to have been incurred, however this is somewhat unclear.

In ‘Applicant’s Non Compliance Trumps That of Respondent’ a case that involves three instances in which the Respondent failed to provide sufficient notice in accordance with the Schedule. However, this is “trumped” by the Applicant having failed to comply with s.38(3) of the Schedule in each instance.

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Payment Under s.38(11) Requires “Temporal Component” But Does Not Require Incurring Treatment

Timing is Everything – In 20-009520 v Aviva, the Applicant Nadarajah sought payment for a treatment plan in accordance with s.38(11) of the Schedule, as Aviva failed to comply with s.38(8) of the Schedule. Specifically, Aviva had not provided the requisite response to the treatment plan until 20 days post submission of same.

The Tribunal confirmed that s.38(11) “mandates insurers to pay for treatment plans that “relate” to a specific period of time, namely, from the 11th business day after the application is received until the date the insurer gives notice.” Further, “the term “relate” establishes a temporal component between the 11th business day after the treatment plan is received and the date the insurer gives notice. This temporal component must be considered when applying paragraph 38(11)(2).”

It was noted that Nadarajah “seems to be saying that treatment plans must be paid in their entirety once paragraph 38(11)(2) is engaged. I disagree. As noted above, the temporal component must be considered. In particular, how the period of time between the 11th and 20th business day, when the Respondent finally gave notice, relates to the treatment plan.” The Tribunal found “too restrictive” Aviva’s suggestion that Nadarajah “had to incur the chiropractic treatment during the period of non-compliance. If it was not incurred, then this treatment is not payable.” This is to be understood in context of the Tribunal having found that there had been no information provided “to confirm that the Applicant received treatment during this time. Under these circumstances, the tribunal cannot quantify what, if any, payment should be ordered.”

The Tribunal confirmed that Nadarajah had correctly identified a period of non-compliance, “but does not state how the chiropractic treatment relates to the temporal component of paragraph 38(11)(2). He merely states that he is entitled to the full treatment plan because the insurer gave late notice. Consequently, the temporal element of paragraph 38(11)(2) has not been established”

Accordingly, one is left to ponder as to the nature of a “temporal element” that needs to be provided, as it appears this may not be satisfied by confirming treatment being rendered/incurred during the applicable period?

Applicant’s Non Compliance Obviates Requirement for s.38(11) Payment

Applicant’s Non Compliance Trumps That of Respondent – In 20-010582 v Jevco, the Tribunal again considers the implications of the Respondent having breached the Notice requirements as per s.38(8) of the Schedule. However, in yet another “twist”, once again the Respondent was found not obliged to pay the Applicant during the breach period.

In this matter, Jevco was found to have failed in three separate instances to have complied with s.38(8) of the Schedule, with the Applicant Wang contending he was entitled to payment of the psychological therapy rendered as a result. The treatment plans were completed by a psychologist, Cook, who allegedly supervised the therapy of a Christine Huang, who at the time was not a registered psychotherapist. However, this arrangement was not listed on any of the associated invoices or treatment plans.

The Tribunal noted that as per the Schedule, “under s.38(3), for a treatment plan to be complete, a regulated health professional must complete and sign it, stating that the proposed services are reasonable and necessary for the insured person’s treatment and assessment.” As a result, “I find that s.38(3) implies that the treatment plan must list who the service provider is or, at a minimum, what the provider’s qualifications are and the hourly fee they are charging. Otherwise, I do not see how the regulated health professional can sign off on the reasonableness of the proposed service. For these reasons, I do not find that any of the disputed treatment plans for psychological treatment comply with s.38(3) of the Schedule.”

In the alternative, the Tribunal found that “If I am incorrect and a treatment plan is not required to list the name, qualifications and hourly rate of the treatment provider to be complete, I fail to see how any treatment provided by a different, less qualified treatment provider than what is described in the treatment plan can be said to qualify as the goods or services “described” in s.38(11) of the Schedule.” The treatment plans did not comply with s.38(3) of the Schedule, as the provider Huang was nowhere listed. As a result, “s.38(11) does not apply. However, if it did, the applicant would not be entitled to the psychological treatment described in the treatment plan from April 25, 2019, less amounts already paid until a requisite denial was made because he did not receive any of the psychological treatment described in the plan.”

Further, “if I am wrong in finding that s.38(11) does not apply because a completed treatment plan in accordance with s.38(3) of the Schedule was not submitted, the respondent is not required by s.38(11) to pay anything further under the treatment plan until the applicant is able to prove that he received any treatment from Mr. Cook pending the requisite notice of denial”.

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