16-000324 v. Wawanesa Mutual Insurance Company, 2017 CanLII 22299

Date: 2017-03-31

Tribunal File Number: 16-000324/AABS

Case Name: 16-000324 v Wawanesa Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

(a minor represented by her litigation guardian)

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

Adjudicator: S. F. Mather

Written Submissions By:

For the Applicant: Parent Litigation Guardian

For the Respondent: Katherine E. Kolhnhoffer, counsel

HEARD: In Writing: January 27, 2017

Overview:

The applicant was involved in a motor vehicle accident on September 14, 2014 and sought medical benefits pursuant to s. 15(1) of The Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”). The applicant was 14 years old at the time of the accident.
Following the accident the applicant reported suffering headaches, dizziness, concentration and focusing issues as well as changes in mood and emotional status affecting her performance in school.
The applicant was assessed by Dr. Henry Svec a psychologist who recommended the applicant undergo an electrophysical brain measurement (“EEG”) in a Treatment and Assessment Plan dated December 17, 2015.
The respondent denied the treatment plan on the basis that the applicant had not been diagnosed with a concussion.
The applicant appealed the denial of the assessment by the respondent to the Tribunal and following the filing of a response by the respondent a case conference was held by telephone on July 18, 2016.
At the case conference the parties were unable to settle all of the issues in dispute and the Tribunal made an order on August 2, 2016 providing for a written hearing and setting out the dates for the delivery of submissions and reply and responding submissions by the parties.

The issues to be decided are as follows:
Is the applicant entitled to $1950.00 for the EEG assessment recommended by Dr. Henry Sevac, a psychologist, in a treatment plan (OCF-18) dated December 17, 2015?
Is the respondent entitled to costs?

Based on the totality of the evidence before me, I find that:
The applicant is entitled to $1950.00 for the EEG recommended by Dr.Henry Sevac, psychologist, in a Treatment and Assessment Plan (OCF-18) dated December 17, 2015?
The respondent is not entitled to costs.

The Tribunal Order dated August 2, 2016 provided dates for the filing of evidence and submissions by the parties. It is apparent from reading the material of the respondent and a copy of an e-mail from the applicant to the respondent dated September 29^th, 2016 that at the case conference it was agreed that the litigation guardian would provide medical records to the respondent by September 12, 2016. No medical records were provided by September 12, 2016.
The applicant filed three documents authored by Dr. Svec with her written submissions:

In paragraph 15 of its submissions the respondent objects to the filing of the reports and letters that were delivered by the litigation guardian with her submissions for the written hearing.
The respondent argues that these reports and letters