J. B. v. Allstate Canada, 2018 CanLII 97844

Date: 2018-04-23

Tribunal File Number: 17-005951/AABS

Case Name: 17-005951 v Allstate 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:

J. B.

Applicant

and

Allstate Canada

Respondent

HEARING DECISION

ADJUDICATOR: Ian Maedel

APPEARANCES: Adrian Nicolini, Counsel for the Applicant Lisa Quan, Counsel for the Respondent

Heard In-Writing on: March 5, 2018

BACKGROUND

1The applicant was injured in a motor vehicle accident on October 3, 2016. The applicant suffered lower back pain and a fracture of his right forearm as a result of the accident. He was taken to hospital where a brain MRI revealed a large brain tumor in his right temporal lobe. On October 11, 2016 the tumor was removed. There was no causal link established between the brain tumor and injuries sustained in the motor vehicle accident.

2The applicant’s driver’s licence was suspended by the Ministry of Transportation on November 19, 2016, due to his brain tumor. His license remained under suspension as of February 14, 2018.¹

3The applicant submitted a Treatment and Assessment Plan (OCF-18) dated May 11, 2017 for medical benefits and psychotherapy sessions which were partially approved by the respondent. He further submitted Expense Claims (OCF-6’s) for transportation expenses in December 2016, and in June and July of 2017, which were denied by the respondent.

4The applicant submitted an Application to the Licence Appeal Tribunal (“LAT”) on September 12, 2017, for the medical benefits and expenses denied by the respondent.

Case Conference

5The parties attended a case conference before Adjudicator Harmison who issued an Order on November 20, 2017 (“Order”). The parties could not resolve the issues outstanding and a hybrid hearing was set for March 5, 2017, whereby the parties would provide written submissions and the applicant would be subject to cross examination and re-examination on his affidavit evidence via teleconference.

6With the exception of the OHIP summary, the applicant failed to provide any of the productions by the January 9, 2018 production deadline set out in the Order. The applicant also failed to provide any submissions or evidence by the February 6, 2018 submission deadline. The respondent provided its written submissions by February 20, 2018 as per the Order. The applicant provided his submissions on the afternoon of March 5, 2018, the date of the hearing, limiting the respondent’s ability to prepare a response to the applicant’s submissions.

ISSUES TO BE DECIDED

7As per the consent of the parties, the hearing shall determine the following issues:

i. Is the applicant entitled to receive a medical benefit in the amount of $1,479.35 ($3,442.53 less $1,963.18 approved) for other goods and services of a medical nature recommended by Dr. Nina Belyakova of Princeton Hill Medical Associates Inc. in a treatment plan dated May 11, 2017, denied by the respondent on July 21, 2017?

ii. Is the applicant entitled to payment for the following amounts for travel expenses:

a) $141.50 for a Metropass submitted via OCF-6 dated December 5, 2016, denied by the respondent on December 20, 2016?

b) $564.44 for public transportation tokens and taxi fares submitted via an OCF-6 dated June 8, 2017, denied by the respondent on June 27, 2017?

c) $76.50 for public transportation tokens and taxi fares submitted via an OCF-6 dated July 26, 2017, denied by the respondent on October 18, 2017?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8The applicant has failed to establish that the benefits sought are reasonable and necessary on a balance of probabilities standard. The applicant’s claims for these benefits are dismissed in their entirety.

9There are no benefits outstanding, thus no interest is payable.

ANALYSIS

Medical Expenses

10The respondent approved $1,963.18 in benefits for the cost of eight one-hour weekly driver reintegration sessions and six one-hour weekly psychotherapy sessions. The applicant sought two-hour psychotherapy sessions and an increased hourly rate for a driving instructor.

11The applicant bears the onus of establishing that the expenses are reasonable and necessary pursuant to section 15(1) of the Statutory Accident Benefits Schedule (“Schedule”) on a balance of probabilities standard.

12The applicant relies on the Driving Reintegration Evaluation report by Dr. Nina Belyakova, Psychologist, dated May 18, 2017.² She indicates that the applicant suffers from anxiety and a specific phobia – situational type, moderate. She relied on the observations of a driving instructor in recommending six sessions in a vehicle and six sessions of accompanied psychotherapy.³ The report is silent on the issue of two-hour versus one-hour psychotherapy sessions and the hourly quantum for in-vehicle driving sessions.

13The respondent relies on the Insurer’s Examination report of Dr. Stephanie Wisenthal, Psychiatrist, dated September 15, 2017. Dr. Wisenthal agreed that the applicant suffers from specific phobia – situational type, passenger anxiety.⁴ She notes that two hour psychotherapy sessions are not specifically requested in Dr. Belyakova’s report and she states that the costs of in-vehicle passenger sessions are excessive. Dr. Wisenthal states that the cost of the passenger sessions should not exceed the maximum hourly rate of an unregulated provider as outlined in the Financial Services Commission of Ontario (“FSCO”) Professional Service Fee Guideline (“Guideline”).⁵ Dr. Wisenthal stated that eight one-hour driving sessions at the mandated hourly rate of $58.19 and six one-hour individual psychotherapy sessions would be reasonable and necessary.⁶

14The respondent approved $1,963.18 in benefits representing the costs of the treatment sessions recommended by Dr. Wisenthal. The applicant has provided no medical evidence to demonstrate why two-hour, in-office psychotherapy sessions will achieve any additional rehabilitative benefit, nor has the respondent provided any evidence why a driving instructor should be paid more than the maximum hourly rate of $58.19 for an unregulated rehabilitation or vocational counsellor, as per the Guideline.

15The applicant has provided no medical evidence or submissions to illustrate that the additional hour of psychotherapy sessions or the enhanced hourly rate of the driving instructor are reasonable and necessary on a balance of probabilities pursuant to s. 15(1) of the Schedule. The claim for these medical benefits is dismissed.

Travel Expenses

16The respondent is not required by the Schedule to pay any medical benefit exceeding the maximum rates as set out in Superintendent’s Guideline No. 04/16: Transportation Expense Guideline (“Transportation Guideline”).⁷

17Section 15(2)(c) of the Schedule states that the respondent is not required to pay medical benefits for transportation expenses other than authorized transportation expenses.

18Section 3(1) of the Schedule defines “authorized transportation expense” as expenses related to transportation:

a) that are authorized by, and calculated by applying the rates set out in, the Transportation Expenses Guidelines… and;

b) that, unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip.

19The applicant now submits that he was prevented from driving due to his fractured right wrist, driving phobia and “blind spots”.⁸ The clinical notes and records indicate visual deficits following his brain surgery, however the applicant has provided no evidence to support a nexus between the suspension of his licence and the injuries sustained in the motor vehicle accident.⁹ Both of the respondent’s expert reports link the licence suspension to the brain tumor, as does the applicant’s Psychological Driving Assessment dated May 11, 2017.¹⁰

20The respondent advised the applicant to provide particulars of the travel expenses including distances, locations and purposes of travel as required by the Transportation Guideline in two separate Explanation of Benefits (EoB’s) dated December 20, 2016¹¹ and June 27, 2017.¹² The applicant failed to provide particulars and the expenses were denied.

21The applicant has not provided evidence to establish that the transportation costs at issue are reasonable and necessary pursuant to s. 15 of the Schedule. The applicant has not established a link between the suspension of his licence and the injuries sustained in the motor vehicle accident. Furthermore, the applicant has failed to provide particulars of the travel expenses as per the Transportation Guideline. As a result, the claim for these travel expenses is dismissed.

ORDER

22For the reasons outlined above, the Tribunal orders that:

i. The applicant has failed to establish that the benefits sought are reasonable and necessary on a balance of probabilities standard. The applicant’s claims for these benefits are dismissed in their entirety.

ii. There are no outstanding benefits, thus no interest is payable.

Released: April 23, 2018

_____________________

Ian Maedel, Adjudicator

Footnotes

1. 1Respondent’s Submissions at Tab V.
2. 2Driving Reintegration Evaluation by Dr. Nina Belyakova dated May 18, 2017.
3. 3Driving Reintegration Evaluation by Dr. Nina Belyakova dated May 18, 2017 at pg. 5.
4. 4Respondents Written Submissions at Tab T. pgs. 14-15.
5. 5Professional Services Guideline, Superintendent’s Guideline No. 03/14, Financial Services Commission of Ontario at pg. 5.
6. 6Respondents Written Submissions at Tab T. pg.15.
7. 7Superintendent’s Guideline No. 04/16: Transportation Expense Guideline, Financial Services Commission of Ontario.
8. 8Applicants’ Written Submissions, pg. 2.
9. 9Clinical Notes and Records of Dr. Nagi Iskander, Family Physician. See notes from October 25, 2016 by Dr. H. MacNeill pg. 45. See also Respondent’s Written Submissions at Tab J and Tab R.
10. 10Respondent’s Written Submissions, Tab S, pg. 16, Tab T pg. 13. Psychological Assessment dated May 11, 2017 at pg. 5.
11. 11Respondents Written Submissions at Tab CC.
12. 12Respondents Written Submissions at Tab DD.