16-001756 v Aviva Insurance Company of Canada, 2017 CanLII 33655

May 08, 2017

Adjudicated by D. Gregory Flude

Topics: Late filing, Attendant Care, Medical and Rehabilitation benefits

The Applicant sought both Attendant Care benefits and Medical and Rehabilitation benefits. The Respondent denied the Attendant Care benefits on the basis that the Applicant did not apply for them in a timely manner. The Respondent also denied the Medical and Rehabilitation benefits because, in its view, they were not reasonable and necessary given the nature and scope of the Applicant’s injuries.

Issue One: Entitlement to medical and rehabilitation benefits: The Applicant did not provide the Treatment and Assessment Plan at issue for the Medical and Rehabilitation benefits. Therefore, these benefits were not payable.

Issue Two: Entitlement to attendant care benefits: The Applicant did not provide an Assessment of Attendant Care Needs Form (Form 1) until after attendant care expenses were incurred. According to s. 42(1) and (5) of the Schedule, an insurer may, but is not required to, pay an expense incurred before receiving a properly completed Form 1. Therefore, the Respondent could not be ordered to pay.

Related to but separate from the issue of attendant care benefits was a claim for payment of an Assessment of Attendant Care Needs carried out before a submission of a Treatment and Assessment Plan for those needs. S. 38(2) of the Schedule acts as a complete bar to recovery for the attendant care assessment. Therefore, the Applicant could not recover for this Assessment.