A recent Appeal decision by Director's Delegate Evans
provides some guidance on the requirement that treatment be
"incurred" before it is payable under the Statutory
Accident Benefits Schedule, Accidents on or after November 1, 1996,
O. Reg. 403/96.
In Perth Insurance Company v. Shmuel, Appeal P13-00026,
(July 22, 2014), the Appeal of the Arbitrator's Order was
allowed and it was held that Mr. Shmuel was not entitled to receive
payment for the medical and rehabilitation benefits
At Arbitration, the issue was whether Mr. Shmuel was entitled to
receive a medical benefit for twenty-nine treatment plans from
Universal Rehab Clinic, totalling $29,299.27. At first
instance, the Arbitrator noted that the treatment plans included a
number of modalities, but none of the alleged treating
professionals testified. The only witness from Universal Rehab was
the office administrator.
As a result, the Arbitrator found "it was not even
possible to determine what 'treatment' had been
administered to Mr. Shmuel in the course of his over one hundred
visits to Universal Rehab during the ten-month period in
Nevertheless, the Arbitrator agreed with Mr. Shmuel that six
treatment plans, totaling $6,398.23, had been "deemed
approved" through operation of section 38(8.2)(2) of the
Statutory Accident Benefits Schedule
("SABS"), which describes the consequences when
an Insurer fails to respond to a treatment plan.
The Arbitrator found that there had been no responses to those
six treatment plans, and that "no jurisprudence was
tendered to support the contention that a treatment plan, deemed
approved, had to be incurred before it became payable."
Therefore, those six plans were payable.
Perth Insurance Company appealed the Arbitrator's Order
which held that, under the SABS, Mr. Shmuel was entitled
to receive medical benefits for the six treatment plans deemed
approved, totaling $6,398.23.
On Appeal, Director's Delegate Evans agreed with
In overturning the Arbitrator's decision, Director's
Delegate reviewed the wording of subsection ("ss.")
38(8.2) of the SABS, which provides as follows:
38. (8.2) If the insurer fails to
give a notice under subsection (8) in accordance with subsection
(8.1), the following rules apply:
2. In the case of a notice under
paragraph 1 of subsection (8), the insurer shall pay for all goods
and services provided under the treatment
plan that relate to the period starting on the 11th business day
after the day the insurer received the application and ending on
the day the insurer gives the notice described in paragraph 1 of
subsection (8). (Emphasis added)
Director's Delegate Evans noted that ss. 38(8.2)
"does not deem the treatment plan approved, does not
require the insurer to pay the entirety of the treatment plan, and
does not speak of a treatment plan being
Rather, the Insurer must only pay for those goods and services
provided under the treatment plan that
relate to the period starting on the 11th business day after the
day the Insurer received the application.
However, as the Arbitrator had specifically found that it was
impossible to determine what treatment had been administered to Mr.
Shmuel in the course of his attendances at Universal Rehab, ss.
38(8.2) had no application. The Arbitrator therefore erred in
finding that Perth Insurance Company was required to pay for those
six treatment plans.
The decision highlights the importance of documenting what
treatment is being provided by a Treatment Provider, what goods and
services are being provided, under what treatment plan and on what
dates. If the Insured is unable to demonstrate that treatment
under the treatment plans were, in fact, "incurred" then
an Insured will be estopped from relying on the deeming provisions
in section 38(8.2) of the SABS-1996 to claim payment for
That being said, it is important to remain cognizant of the fact
that the wording in ss. 38(8.2) of the SABS-1996 was changed in the
Statutory Accident Benefits Schedule – Effective
September 1, 2010. Section 38(11) now provides that:
The insurer shall pay for all goods,
services, assessments and examinations
described in the treatment and
assessment plan that relate to the period starting on the 11th
business day after the day the insurer received the application and
ending on the day the insurer gives a notice described in
Therefore, it appears that the requirement that the treatment
had to have been provided in order to be
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