April 05, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: February 21, 2014
Heard Before: Adjudicator Susan Sapin
DECISION ON A PRELIMINARY ISSUE
Brittany McDonald was injured in a car accident on January 7, 2008 at the age of 20. She was working as an apprentice hairstylist and had just completed beauty school and the 2000 apprenticeship hours required to become a licensed hairstylist in Ontario but had yet to write her certification exams. Due to her injuries, which included a herniated disc that was eventually surgically removed in April 2010, Ms. McDonald was no longer able to work as a hairstylist.
Ms. McDonald applied to Aviva for vocational retraining under s.15 of the Schedule submitting a Treatment Plan (OCF-18) by her family doctor in January 2009. She requested funding for one of two community college programmes. Included with the Treatment Plan were a description of the programmes and tuition costs.
Aviva denied the Treatment Plan and sent Ms. McDonald for an Insurer’s Examination in March 2009 with an orthopaedic surgeon who opined that Ms. McDonald would not require retraining if she had surgery to her back. The surgery was not successful. On that basis of the surgeon’s optimistic opinion, Aviva maintained its denial of the Treatment Plan, but nevertheless paid for tuition and books for two college upgrading courses in November 2009 after Ms. McDonald submitted receipts for them.
In March 2010, Ms. McDonald advised Aviva that she had decided to become a teacher and had been accepted into a four year combined Bachelor of Arts and Education degree at Lakehead University beginning in September 2010. She asked Aviva to pay the cost of tuition. Aviva said it would only fund the college programme. Ms. McDonald did not submit a new Treatment Plan for the university course, nor did Aviva request one.
Ms. McDonald had surgery in April 2010 and went ahead with her plans for university. She enrolled at Lakehead and completed the first two years of the degree programme by the spring of 2012 at her own expense, relocating to Thunder Bay during the school year to do so. She did not continue in September 2012 because she could not afford the remaining two years.
In her Application for Arbitration, Ms. McDonald claims compensation for tuition, books and living accommodation for the four-year university programme as a rehabilitation measure under s. 15 of the Schedule. Aviva refused to pay for the cost of a university degree on the basis that Ms. McDonald did not submit a Treatment Plan (OCF-18) for it. Eventually, on May 1, 2012, after Ms. McDonald mediated her claim, Aviva paid the full tuition cost of $8,202 for the three-year community college programme Ms. McDonald never attended, taking the position it is not liable for anything more. On April 22, 2013 she submitted a second, more complete version of the OCF-18.
Has Ms. McDonald failed to comply with section 38 of the Schedule with respect to the four-year university programme at Lakehead University, and, if so, what are the consequences?
Ms. McDonald did not provide Aviva with a Treatment Plan with respect to university expenses under s. 38 of the Schedule until April 22, 2013. The consequences are that she is not barred from proceeding to arbitration for expenses incurred before October 4, 2012, when Aviva first advised her it was relying on her failure to submit a Treatment Plan as a reason for denying her claim.
Aviva is liable for expenses for university tuition fees, books and educational materials for the first two years of the four-year university programme, as calculated by the parties.
Ms. McDonald is entitled to interest on overdue amounts of 2 per cent per month, compounded.
Ms. McDonald is entitled to a special award, to be calculated by the parties in accordance with this decision.
Ms. McDonald is entitled to her expenses of this preliminary issue hearing.
Aviva submitted that s. 38(1.1) of the Schedule states that an insurer is not required to pay for any rehabilitation expenses incurred before the insured person submits a Treatment Plan and as Ms. McDonald did not submit a Treatment Plan for her university expenses before she incurred them, the matter ends there. Aviva argues that a university teaching degree is not a necessary and reasonable rehabilitation measure for Ms. McDonald under s. 15 of the Schedule.
Ms. McDonald’s position is that Aviva should not be allowed to rely on her failure to submit a Treatment Plan to defeat her claim because it never advised her it required a Treatment Plan for her university expenses until October 4, 2012, well after she had already completed two years of the four-year university course and after she had incurred the expenses. Ms. McDonald argues that Aviva failed in its obligations under s. 32 of the Schedule, and in its obligations as her first party insurer to adjust her claim with utmost good faith. She also submits that the full cost of the university degree is a reasonable rehabilitation measure under s.15 of the Schedule, which Aviva should pay.
Arbitrator Sapin found Ms. McDonald’s failure to submit a Treatment Plan for the four-year university degree until April 22, 2013 was not a bar to her proceeding to arbitration on the issue of whether or not the expenses claimed up to October 4, 2012 are reasonable and necessary, and that Aviva is liable to pay for the cost of university tuition fees and books Ms. McDonald incurred for her first two years at Lakehead as a reasonable and necessary rehabilitation measure. Aviva failed its own obligations under s. 32 to advise Ms. McDonald that if she wanted Aviva to fund a university education she should submit a further Treatment Plan for it. Aviva should have obtained vocational counselling once it became clear Ms. McDonald was unsure about what retraining to take, and should have assisted Ms. McDonald to obtain a vocational assessment in a timely fashion.