Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: J.S. vs. RBC Insurance, 2020 ONLAT 19-004243/AABS

Date: July 28, 2020

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.S.

Applicant

and

RBC Insurance

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Anton Serikov, Paralegal

For the Respondent: Kristofer Angle, Counsel

Heard: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on March 3, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant applied for payment of the cost of an orthopaedic assessment and an attendant care assessment. The respondent denied the orthopaedic assessment on the basis that it is available under the Ontario Health Insurance Plan (OHIP) and as such, under section 47(2) of the Schedule, the assessment is not payable. The respondent denied payment of the attendant care assessment as it is not reasonable and necessary and it was not incurred.

2The applicant maintains that he is entitled to the costs of the assessments in dispute as they are reasonable and necessary. He maintains the respondent did not properly deny the two treatment plans. Further, the applicant disputes the respondent’s interpretation of sections 25 and 47(2) of the Schedule. In the applicant’s view, section 25 does not require that an assessment be unavailable under OHIP. The applicant’s position is that both treatment plans are payable.

3The applicant was removed from the Minor Injury Guideline (MIG) on the basis of psychological injuries.

ISSUES

4The issues are as follows:

i. Is the applicant entitled to payment for the cost of an orthopaedic assessment in the amount of $2,260.00 recommended by Medex Assessments in a treatment plan submitted December 28, 2016, which was subsequently denied by the respondent?

ii. Is the applicant entitled to payment for the cost of an attendant care assessment in the amount of $2,147.00 recommended by Medex Assessments in a treatment plan dated and submitted December 9, 2016, which was subsequently denied by the respondent?

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

RESULT

5For the reasons below, the claims for the assessments are dismissed. Interest is not payable as there is no overdue payment of benefits.

Positions of the Parties

6The applicant submits that the orthopaedic assessment is reasonable and necessary based on the extent of the applicant’s musculoskeletal injuries and his medical history.¹ Since the accident, and after the assessment by Dr. Kwok², physician, he has complained of pain in the right knee, neck and right shoulder. Surgery of the right knee was required and performed by Dr. Walmsley,³ orthopeadic surgeon, in November 2016. He then developed a post-surgery gait of the right knee which he claims caused symptoms of the left knee, resulting in a left knee replacement in 2019.⁴

7The respondent argues there was no need for either assessment. The respondent argues