Volume. 8 Issue. 24 – July 3, 2024
This week the Tribunal considers whether to adjudicate an Applicant’s claim for in excess of $400K worth of benefits, as well as a claim for an Award. The non – CAT limits had been exhausted, and the Applicant had not sought a CAT determination, as it was less than two years since the subject MVA.
Application Premature On Benefits Claimed in Excess of Limits
No Jurisdiction Regarding $400K+ Worth of Benefits – Injured in a January 2023 MVA, the Applicant Alkhatlan submitted an OCF-6 to Aviva seeking reimbursement for $455,530.06 owed to Trillium Health Partners in November 2023. Two days after submission Aviva paid the remainder of the non-catastrophic policy limits for medical and rehabilitation benefits of $48,607.24. In 23-010231 v Aviva, Alkhatlan sought entitlement to the balance of the OCF-6 in addition to four OCF-18s as well as attendant care (ACB). Alkhatlan also sought an award for unreasonably withheld or delayed payments. The Tribunal ultimately found that the claims for substantive issues was premature, however could proceed with respect to the claim for an award.
Noting that Alkhatlan was not able to apply for a CAT determination until two years post MVA (January 2025), it was determined that “a hearing is not necessary to make any findings about her entitlement to the disputed benefits, nor interest.” However, Alkhatlan sought “an order that the application be heard on its merits… the Tribunal could rule on the reasonableness and necessity, while payment can be deferred subject to availability of policy limits or pending a catastrophic determination. The applicant submits that the concept of “reasonable and necessary” and “payable” are distinct.”
The Tribunal was not persuaded by this line of reasoning, agreeing with Aviva that the application for benefits was premature, noting that the Tribunal “has endorsed preconditions to entitlement, refusing to adjudicate entitlement to precondition-dependent benefits where the precondition has not been satisfied.” Reference was made to Tlapale v. Wawanesa Insurance, wherein in a similar fact situation, “that the fact that the applicant’s policy limit had been reached prefaces any other consideration in this matter”. In order to find entitlement to the benefits in dispute, Alkhatlan must be deemed CAT, and as that issue is not before the Tribunal, it cannot be found that the benefits are reasonable and necessary.
Further, “it is an abuse of process to adjudicate something that the applicant cannot possibly gain from”. Seeking adjudication of entitlement to benefits, where there cannot be entitlement subverts the principles enshrined in the SPPA and the Rules of proportionality, expediency and cost-efficiency. Using Alkhatlan’s approach, could result in an absurdity, with for example an applicant, not contesting that they were held within the MIG, seeking entitlement to hypothetical non MIG benefits. The “pursuit of her entitlement to benefits at this juncture would result in a waste of Tribunal resources and the resources of the parties.”
As for the claim for an award, the Tribunal noted that if the “hypothetical OCF-19 were accepted by the respondent and no further dispute regarding entitlement arose, or if she never files an OCF-19, then the applicant would be deprived of her opportunity to seek an award on any benefits that were unreasonably denied or withheld that form part of this dispute. Therefore, I find that the applicant may proceed to a hearing on the issue of an award only.”
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