Tribunal File Number: 19-000694/AABS
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:
PBM
Applicant
and
Aviva Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Netta Untershats
Counsel for the Respondent: Robert Jones
Heard in writing on: September 30, 2019
OVERVIEW
1The applicant was injured in an automobile accident on August 31, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was travelling as the seat-belted driver through an intersection when she was struck by another vehicle. She sustained psychological and physical injuries as a result of the collision.
3The applicant applied for medical benefits that were denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
4The following are the issues to be decided:
i. Is the applicant entitled to payment for the cost of examination in the amount of $1,672.11 for a Functional Abilities Evaluation Assessment recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on May 26, 2017 and denied on June 8, 2017?
ii. Is the applicant entitled to payment for the cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on October 19, 2018 and denied on January 8, 2019?
iii. Is the applicant entitled to payment for the cost of examination in the amount of $1,970.00 for a neurological assessment recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on October 19, 2018 and denied on January 8, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based on the totality of the evidence before me, I find that the applicant is not entitled to the claimed benefits and as a result, no interest is owing.
ANALYSIS
Is the applicant entitled to a Functional Abilities Evaluation Assessment in the amount of $1,672.11?
6I find the Functional Abilities Evaluation Assessment is not reasonable and necessary for the following reasons.
7The applicant submits that the day after the accident she visited her doctor and was diagnosed with a left arm sprain, neck sprain, trapezius strain, back sprain and a left elbow sprain. Physiotherapy was recommended.2
8The applicant further submits that her chiropractor, Dr. Louis, who submitted a Disability Certificate (OCF-3) on her behalf answered “yes” to the questions of whether the applicant was unable to perform the essential tasks of her employment, whether she suffered a substantial inability to engage in caregiving activities, and whether she had a substantial inability to perform housekeeping and home maintenance services.
9Other than that, I have not been provided with any submissions or evidence on why a Functional Abilities Evaluation Assessment is reasonable and necessary.
10Pointing to evidence of the applicant’s injuries and impairments as a result of the accident is not sufficient on its own to show that a Functional Abilities Evaluation is reasonable and necessary. More is required such as the opinion of a medical professional who recommends that she should get one.
11The onus is on the applicant to prove and as a result of the above, I find that the applicant has not satisfied me on a balance of probabilities that the cost of an examination for a Functional Abilities Evaluation is reasonable and necessary and as a result, the respondent is not liable to pay for it.
Is the applicant entitled to a Chronic Pain Assessment in the amount of $2,000.00?
12find that the applicant has not proven on a balance of probabilities that a chronic pain assessment is reasonable and necessary for the following reasons.
13The applicant submits the treatment plan submitted by Dr. Wilderman and Dr. Louis note the applicant was diagnosed by them with chronic pain and other injuries and that the applicant has not reached maximal medical improvement.
14The applicant has not directed me to any other evidence to corroborate the recommendations in the treatment plan. Tribunal jurisprudence has stated that a treatment plan or OCF-18 on its own is not sufficient or compelling evidence to prove entitlement to the treatment or that the treatment plan is reasonable and necessary.3 I agree with and adopt this position for the purposes of this hearing. The applicant has not provided any sufficient or compelling evidence to support the request for a chronic pain assessment.
15Once again, with the onus being on the applicant, I am not satisfied on a balance of probabilities that a chronic pain assessment is reasonable and necessary and the respondent is not liable to pay for it.
Is the applicant entitled to a Neurological Assessment in the amount of $1,970.00?
16With the onus being on the applicant, I have not been directed to any evidence to show that the neurological assessment is reasonable and necessary for the following reasons.
17The applicant submits that a neurological assessment is required based on her self-reporting from the psychological progress reports dated February 17, 2017 and October 25, 2018.4 The psychological reports diagnose the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational (Automobile Anxiety as a Driver and Passenger) and for the applicant to continue with psychotherapy which will incorporate cognitive behavioural strategies.5
18The applicant submits that the psychological treatment was approved by the respondent. However, I have not been directed to any evidence of the need for a neurological assessment and why it would be reasonable and necessary.
19Other than the self-reports of the applicant of cognitive issues and the treatment of those issues, which according to the applicant’s submissions have been approved by the respondent, I am not directed to any evidence of neurological issues or any recommendation that would warrant a need for such. As a result, I am not persuaded on a balance of probabilities that a neurological assessment is reasonable and necessary.
INTEREST
20As a result of the above, there are no overdue payment of benefits and accordingly no interest is payable by the respondent.
ORDER
21For the reasons outlined above, the applicant is not entitled to any of the claimed benefits in dispute for this application and as a result, no interest is owing.
Released: March 16, 2020
Sandeep Johal, Adjudicator
Footnotes
- O. Reg. 34/10.
- Applicant Written Submissions at Tab 5.
- 16-001539 v Wawanesa Mutual Insurance Company, 2017 CanLII 82039 (ON LAT) at paras. 9-10.
- Applicant Written Submissions at Tab 8.
- Ibid.