20-014686/AABS

Licence Appeal Tribunal File Number: 20-014686/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:

Tammy Mullins

Applicant

And

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Andrea Reid

APPEARANCES:

For the Applicant: Eli Jakubovic, Counsel

For the Respondent: Philp Evans, Counsel

HEARD: In Writing

OVERVIEW

1Tammy Mullins, the applicant, was involved in an automobile accident on February 24, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,404.11 ($4,968.23 less $2,564.12 approved) of a treatment plan (“OCF-18”), dated November 5, 2020, for occupational therapy proposed by Innovative Occupational Therapy Services denied on November 29, 2020?

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

iii. Is the applicant entitled to an award under s.10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULTS

3The applicant has not demonstrated that the OCF-18 for occupational therapy services is reasonable and necessary and therefore, is not entitled to further funding beyond what has been previously approved. As there are no amounts overdue, the applicant is not entitled to interest nor to an award.

ANALYSIS

The treatment and assessment plan is not reasonable or necessary

4I find that the applicant has not met her burden to establish that the treatment plan is reasonable and necessary.

5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the onus of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

6The applicant suffered injuries in the accident identified as physical and functional impairments. On November 18, 2020, the disputed treatment plan recommending eight occupational therapy treatment sessions was submitted by Innovative Occupational Therapy Services to the respondent. On February 3, 2021, the respondent partially approved the treatment plan in the amount of $2,564.12, approving four occupational therapy sessions. There remains an outstanding balance in dispute of $2,404.11 for this plan. To date, the applicant has not incurred any treatment.

7It is the position of the applicant that she is entitled to the treatment plan for eight occupational therapy sessions. She relies on the letter sent to the respondent on January 16, 2020 by her Occupational Therapist, Ms. Don, outlining the applicant’s functional impairments and request for treatment plan approval. The applicant submits there is no rationale provided for the approval of only four of the eight treatment sessions. She requests the insurer approve all of them.

8It is the position of the respondent that the partially approved treatment plan for four occupational therapy sessions is sufficient for the applicant’s accident-related impairments as noted by Occupational Therapist, Mr. Hirano, in a report dated February 1, 2021. Mr. Hirano did agree with Ms. Frank that some treatment was warranted but noted a lack of evidence to justify the eight treatment sessions. The respondent submits the evidence does not support the fact that the additional sessions should be approved at this time.

9It was noted that the applicant was involved in a motor vehicle accident on February 24, 2016. As a result, there is conflicting evidence around the applicant’s cognitive symptoms and if they are directly linked to this accident. On November 5, 2018, the applicant was seen by her family physician after she slipped on ice and hit her head. Of note, the day after the motor vehicle accident, the applicant told the same family physician that she did not hit her head in the collision. The evidence does not directly correlate the applicant’s cognitive symptoms to the accident.

10Further, while the evidence does indicate the applicant has suffered psychological issues related to the accident, to date she has not incurred the approved treatment sessions, which were approved one year prior to the hearing submissions being filed.

11I find that the applicant’s submissions and medical evidence do not establish entitlement to the treatment plan beyond the four occupational therapy sessions that have already been approved. I am persuaded by the evidence that the applicant has not sought or required any occupational therapy treatment, meaning the remaining unapproved treatment is not reasonable or necessary.

12A treatment plan itself without corroborating medical evidence to support it is not enough to establish that it is reasonable and necessary. As such, I find the applicant has not demonstrated that the remaining unapproved portion of the treatment plan is reasonable or necessary.

Interest

13No interest is payable as there are no outstanding benefits pursuant to s. 51 of the Schedule.

Award

14The applicant provided no evidence in support of an award pursuant to s. 10 of Regulation 664 of the Insurance Act.

15Since I find that there are no additional benefits payable to the applicant beyond what has been approved, the respondent cannot be found to have unreasonably withheld or delayed payment. As a result, an award is not warranted in the circumstances.

ORDER

16I find:

i. The applicant is not entitled to the unapproved portion of the treatment plan as it is not reasonable and necessary;

ii. The applicant is not entitled to interest as there is no overdue payment of benefits;

iii. The applicant is not entitled to an award.

17The application is dismissed.