21-003232/AABS

Licence Appeal Tribunal File Number: /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:

W. C.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Rajwant Singh Bamel, Counsel

For the Respondent:

Justine O. Lee Young, Counsel

HEARD:

By Way of Written Submissions

1[WC], the applicant, was involved in an automobile accident on April 24, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was twelve years old at the time of the accident. He was hit by a car while crossing the street on his way to school. He alleges that he suffers from ongoing pain and mental health issues.

3It is common ground that the applicant’s injuries were not predominantly minor within the meaning of s. 18(1) of the Schedule, and that he is consequently entitled to $65,000.00 in medical and rehabilitation benefits under s. 18(3)(a). At issue is whether the applicant is entitled to benefits for chiropractic and psychological services proposed in three treatment plans (OCF-18s) with interest. The applicant also seeks an award under s. 10 of Regulation 664 on the grounds that the respondent unreasonably withheld or delayed payment of the benefits.

ISSUES

4The issues in dispute are:

Is the applicant entitled to $3,834.60 for chiropractic services, proposed by A-Med Physiotherapy & Rehabilitation in a treatment plan dated May 14, 2019?
Is the applicant entitled to $3,695.05 for chiropractic services, proposed by A-Med Physiotherapy & Rehabilitation in a treatment plan dated September 17, 2019?
Is the applicant entitled to $1,047.34 ($3,335.98 less $2,288.64 approved) for psychological services, proposed by Downsview Healthcare Inc. in a treatment plan dated March 29, 2021?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?

5In its written submissions, the respondent advised that it would pay the unapproved amount of the psychological services in dispute.

RESULT

6The applicant is not entitled to the proposed chiropractic services.

7The respondent has agreed to pay the unapproved amount of the proposed psychological services. The applicant is entitled to interest with respect to that amount calculated in accordance with s. 51(4) of the Schedule

8The applicant is not entitled to an award under s. 10 of Regulation 664.

IS THE APPLICANT ENTITLED TO THE PROPOSED CHIROPRACTIC SERVICES?

9I find that the applicant has not established that he is entitled to the proposed chiropractic services.

10The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, including chiropractic services. The onus is on the applicant to prove that the benefits are reasonable and necessary.

11The applicant submits that he is entitled to the proposed chiropractic services because the respondent solely denied them on the grounds that he had sustained a predominantly minor injury, which would limit him to $3,500.00 in medical and rehabilitation benefits. He argues that the respondent erred in denying the benefits despite having his family doctor’s and treating clinics’ notes and records and the treatment plans, and without obtaining an independent assessment.

12The respondent submits that the treatment plans are insufficient in themselves to establish that the proposed treatment is reasonable and necessary, and the applicant has provided no objective medical evidence in their support. It argues that the applicant does not suffer from a physical injury requiring ongoing treatment because he only saw a doctor twice for his injuries: when he visited the hospital on the day of the accident, and when he visited his family doctor six days later. It relies on an independent assessment conducted by Dr. A. Oshidari, a physiatrist, who opined that the applicant’s physical injuries were predominantly minor, that he does not suffer from a physical impairment, and that the proposed services would have no benefit because the applicant had already received passive treatment.

13I find that the applicant has not met his onus of establishing that the proposed chiropractic services are reasonable and necessary. His submissions only list the specific goods and services set out in the treatment plans. They do not identify any evidence that demonstrates the proposed services are reasonable and necessary.

14The applicant is incorrect that the respondent denied the benefits solely on the grounds that he sustained a predominantly minor injury, and that it did so without obtaining an independent assessment. The respondent denied the second treatment plan in an Explanation of Benefits dated June 23, 2021. It agreed that he had sustained a psychological impairment constituting a non-minor injury, but denied the proposed chiropractic services based on Dr. Oshidari’s opinion regarding his physical injuries. The applicant did not refute Dr. Oshidari’s findings or make any arguments as to why his opinion should not be accepted.

15As the applicant has not met his burden of proof, I need not consider the respondent’s argument that his physical injuries do not require ongoing treatment.

IS THE APPLICANT ENTITLED TO AN AWARD?

16I find that the applicant is not entitled to an award.

17Section 10 of Regulation 664 provides that the Tribunal may grant an award of up to 50 per cent of the total benefits payable if the respondent unreasonably withheld or delayed the payment of benefits. Unreasonable behaviour can be seen as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”: Malitskiy v Unica Insurance Inc, 2021 ONSC 4603 (Div Ct) at para 46.

18As the applicant is not entitled to benefits for the chiropractic services in dispute, he is not entitled to an award with respect to those benefits.

19The applicant submits that he is entitled to an award with respect to the unapproved psychological services. The treatment plan proposed 14 counselling sessions of one and a half hours, and expenses for completing documentation and other tasks.

20The applicant argues that the respondent acted unreasonably by denying the benefits despite having Dr. M. Costa El-Hage’s opinion that he sustained a psychological impairment and required treatment. He argues further that because the respondent only agreed to pay the benefits after he filed his written submissions, he was delayed in receiving them and had to incur the time and expense of bringing this application to a hearing.

21The respondent’s submissions do not address this issue.

22The respondent partially approved the treatment plan based on Dr. Costa El-Hage’s report. She opined that psychological treatment was reasonable and necessary, but that one-hour counselling sessions would be sufficient rather than one-and-a-half hour sessions. The total cost of 14 one-hour sessions and the other expenses came to $2,288.64, which the respondent approved.

23I find that approving sessions of one hour rather than one and a half hours does not qualify on its own as unreasonable conduct meriting an award. The respondent relied on Dr. Costa El-Hage’s recommendation that one-hour sessions would meet the goals of the proposed treatment. The applicant has not identified why this recommendation was unreasonable, or why it was unreasonable of the respondent to rely on it.

IS THE APPLICANT ENTITLED TO INTEREST?

24I find that the applicant is entitled to interest with respect to the unapproved benefits for psychological services in accordance with s. 51(4) of the Schedule.

25Section 51(2) of the Schedule provides that the respondent shall pay interest on overdue payments of benefits. Section 51(4) sets out how interest is calculated when an application before the Tribunal is settled.

26I find that in agreeing to pay the unapproved amount of the proposed psychological services, the respondent settled this issue within the meaning of s. 51(4), and must therefore pay interest pursuant to that subsection.

27As the applicant is not entitled to the proposed chiropractic services, he is not entitled to interest with respect to those benefits.

ORDER

28The applicant is not entitled to the proposed chiropractic services.

29The applicant is entitled to interest for the unapproved amount of the proposed psychological services in accordance with s. 51(4) of the Schedule.

30The applicant is not entitled to an award under s. 10 of Regulation 664.

Released: March 17, 2023

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