Licence Appeal Tribunal File Number: 20-015151/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:
Cody McBeth
Applicant
and
Allstate Insurance
Respondent
PRELIMINARY DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Michael Smitiuch, Counsel
For the Respondent:
Kevin Mitchell, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Cody McBeth (“C.B.”) was involved in an automobile accident on November 24, 2018 and sought benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2Allstate denied the medical benefits on the grounds that C.B. did not attend several s. 44 insurer’s examinations (“IEs”) and that the treatment and assessment plans were not reasonable and necessary. C.B. disagreed with Allstate’s decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
Notice of Motion
3On December 14, 2022, C.B. filed a Notice of Motion requesting that the Tribunal consider a recent preliminary decision in McBeth v Allstate Insurance (“McBeth”). In McBeth, the Adjudicator considered whether C.B. was barred from proceeding with his claim for an income replacement benefit due to a failure to attend insurer examinations in accordance with s. 44 of the Schedule. The Adjudicator found that Allstate failed to provide proper notice, resulting in C.B. not being statute barred from proceeding with his claim.
4C.B.’s position is that the subject proceeding involves a nearly identical preliminary issue, as it is the same parties and facts as those in McBeth. He submits that for the sake of “judicial efficiency”, my decision should remain consistent with the McBeth decision.
5I disagree.
6First, I am not bound by the decisions of my fellow Adjudicators. Second, the issues are distinguishable from those in McBeth, as that matter addresses a claim for income replacement benefits and not medical/rehabilitation benefits. Third, the request is not appropriate as C.B. had plenty of time prior to the hearing date to make such a request, which I find to be prejudicial to Allstate. A decision has already been rendered in both McBeth and in the subject proceeding.
7I find no reason to interfere with my decision at first instance on the basis of C.B.’s Notice of Motion.
8Accordingly, the Motion is dismissed.
PRELIMINARY ISSUES
9The preliminary issue in dispute is as follows:
a. Is C.B.’s application barred from proceeding, in whole or part, due to s. 55(1) of the Schedule?
SUBSTANTIVE ISSUES
10The following issues are in dispute:
b. Is the medical benefit in the amount of $2,200.00 for occupational therapy, proposed by Options Therapy in a treatment plan (OCF-18), dated December 21, 2018 reasonable and necessary?
c. Is the medical benefit in the amount of $2,693.81 for occupational therapy, proposed by Options Therapy in an OCF-18 dated January 7, 2019 reasonable and necessary?
d. Is the medical benefit in the amount of $354.82 for phone repairs and assistive devices, proposed by Options Therapy in an OCF-18 dated February 26, 2019 reasonable and necessary?
e. Is the medical benefit in the amount of $614.44 for a gym membership and assistive devices, proposed by Options Therapy in an OCF-18 dated April 2, 2019 reasonable and necessary?
f. Is the cost of examination expense in the amount of $1,200.00 for an optometric assessment, proposed by Apex Health in an OCF-18 dated May 10, 2019 reasonable and necessary?
g. Is the medical benefit in the amount of $2,444.42 for occupational therapy, proposed by Options Therapy in an OCF-18 dated May 22, 2019 reasonable and necessary?
h. Is the medical benefit in the amount of $3,706.90 for physical therapy, proposed by Shift Concussion in an OCF-18 dated August 19, 2019 reasonable and necessary?
i. Is the medical benefit in the amount of $9,402.00 for hearing aids, proposed by Berge Hearing in an OCF-18 dated December 21, 2019 reasonable and necessary?
j. Is the medical benefit in the amount of $2,988.53 for physical therapy, proposed by Tri-City Physiotherapy in an OCF-19 dated November 6, 2020 reasonable and necessary?
k. Is the cost of examination expense in the amount of $1,921.00 for an audiological assessment, proposed by Brenda Berge in an OCF-18 dated April 15, 2019 reasonable and necessary?
l. Is the rehabilitation benefit in the