C.D. v. Aviva Insurance Canada, 2017 CanLII 81581

C.D. v. Aviva Insurance Canada

Date: 2017-11-27 Tribunal File Number: 17-002814/AABS Case Name: 17-002814 v Aviva Insurance Canada

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:

C.D. Applicant

and

Aviva Insurance Canada Respondent

AMENDED DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Michael Wentzel, Representative For the Respondent: Suzanne Clarke, Counsel

HEARD in Writing on October 11, 2017

OVERVIEW

1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) to determine an insured person’s entitlement to statutory accident benefits.

2CD, (“the applicant”) was involved in an automobile accident on January 8, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

3The applicant is seeking payment for a psychological assessment and report. The respondent partially approved the assessment plan recommended but disputes the amount. The sole dispute is the plan’s cost.

ISSES

4The issues in dispute are:

1. Is the applicant entitled to a payment for the cost of examinations in the amount of $677.93 for a psychological assessment recommended by Pilowsky Psychology Professional Corporation (“Pilowsky”) in an assessment dated April 20, 2016, denied by the respondent on May 13, 2017?²
2. Is the respondent liable to pay an award under s.10 of Regulation 664, Automobile Insurance³ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest on overdue payments from the respondent?

FINDINGS

5The applicant has not met the onus on her to prove that the amount of the claimed assessment plan is reasonable and necessary.

6As a result of my finding on the substantive issue, the respondent is not liable to pay either an award or interest on the amount claimed by the applicant.

REASONS

Is the Respondent statute-barred from denying the Applicant’s claim?

7The applicant argues that she is entitled to be paid for the full claimed cost of the psychological examination, which she incurred, because the respondent failed to comply with s.38 (8) of the Schedule.

8Section 38(8) of the Schedule requires the insurer to give the insured person a detailed notice of what it agrees to pay for, refuses to pay for and the reasons for its decision within ten business days of receiving a treatment and assessment plan.

9Section 38(11)2 of the Schedule sets out the consequence for failing to comply with s.38(8): the insurer must pay for all goods, services, assessments and examinations starting on the 11th business day after the insurer received the application and ending on the day the insurer gives the notice required by s.38(8).

10The parties agree that the applicant submitted the disputed OCF-18 on April 22, 2016. The 11th business day is after the insurer received the claim was May 9, 2016. The respondent denied the claim on May 13,