*Complimentary Issue*

[Special Edition] Volume. 5 Issue. 32 – July 20, 2021

In this special edition LAT inFORMER, the Court affirms that s.38(11) does not include a requirement that expenses be reasonable or necessary. Rather, the wording of s.38(11) is mandatory and requires an insurer to pay.

The Court intervened in a matter in which the Tribunal, in both the original decision and upon its own reconsideration, failed to properly address the payment provision set out in s.38(11)2 which applies when the insurer fails to give notice in accordance with s.38(8).

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Court Remedies Tribunal’s failure to Invoke S.38(11)

S.25 Court Remedies Tribunal’s failure to Invoke S.38(11) – At issue before the Court in Kyrylenko v. Aviva, was whether the adjudicator erred by failing to apply s.38(11) to two denied Treatment Plans. Both plans were submitted September 11, 2017, with the denial not being provided until November 16, 2017.

Original Decision
Kyrylenko’s injuries were found to fall within the MIG. The Tribunal also addressed two Treatment Plans, one for physiotherapy and the other for an incurred attendant care assessment. It was found that Kyrylenko was not entitled to the benefits despite the Respondent’s technical deficiencies.

Having lost the original decision, Kyrylenko sought reconsideration, specifically referencing the implications of s.38(11). Hearing its own reconsideration, dealing firstly with the physiotherapy plan, the Tribunal found that it remained unclear as to whether any treatment had been incurred from the 11th business day following submission until the November 16, 2017, denial. Upholding the decision that the physiotherapy plan was not payable, the Tribunal also cited s.38(2) which does not require payment for expenses before a treatment plan is submitted.

With respect to the attendant care assessment, the Tribunal found that it did not address s.38(11), and as such, there was a deficiency in the decision that needed to be addressed. It was then concluded that that the assessment was not reasonable and necessary.

Divisional Court Ruling
The Court, on appeal, ruled that “the adjudicator ought to have directed the parties to identify those physiotherapy expenses that related to the timeframe under s. 38(11) and to have ordered payment accordingly.”

The Court also found for a fact that upon reconsideration the Tribunal failed (again) to consider the implications of s.38(11) regarding the attendant care assessment, which was incurred October 30, 2017.

The Court found that the Tribunal had both:

    1. ignored that some of the expenses were incurred during the time frame contemplated under s.38(11) and;
    2. erred in also finding that the expenses were not reasonable and necessary

Rather, “s.38(11) does not include a requirement that the expenses be reasonable or necessary. Instead, the wording of s. 38(11) is mandatory and requires an insurer to pay…”.

The Court found that s.38(11) was “akin to consumer protection legislation and is designed to protect victims of motor vehicle accidents where an insurer fails to respond within the prescribed time frame”. While the Tribunal had found “there is no evidence before the Tribunal that attendant care benefits are needed by the applicant”, the Court noted again that this was not the issue. Rather, it was a matter as to “whether the assessment was incurred, and whether the associated cost would be covered under s.38(11).”

The Respondent further argued that there was an inconsistency between s. 38(11) and s. 25(2) of the SABS, the latter which specified that they were not required to pay for an assessment in the home, unless the Applicant had sustained an impairment that was not a minor injury. However, the Court noted that the failure to give notice in accordance with s.38(8) precluded the Respondent from taking the position that the MIG applied. Therefore, “even though the Tribunal determined in its initial decision that the appellant’s claim fell within the minor injury guideline, this provision precludes the insurer from relying on the minor injury guideline in responding to the claim by the appellant.”

Therefore, “the adjudicator erred in law in denying the claim for the in-home assessment”, and as a result, failed to consider whether a special award was appropriate. The assessment was ordered to be paid, plus those portions of the physiotherapy expenses which fall within s. 38(8). The matter was sent back to the Tribunal (to another adjudicator) to consider whether an award was appropriate. Costs were awarded in the sum of $5,000 to Kyrylenko.

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