Citation: Weber v. Allstate Insurance, 2023 ONLAT 20-010802/AABS

Licence Appeal Tribunal File Number: 20-010802/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:

Jocelyn Weber

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Gordon W. Harris, Counsel

For the Respondent:

Kevin D. H. Mitchell, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jocelyn Weber (“the Applicant”) was involved in an automobile accident on March 9, 2017 and sought benefits from Allstate Insurance (“the Respondent”) 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 the Respondent, Allstate, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week from April 6, 2017 to March 9, 2019?

2. Is the Applicant entitled to the cost of an examination in the amount of $2,989.06 for a psychological assessment proposed in a treatment and assessment plan dated December 5, 2019?

3. Is the Applicant entitled to the cost of an examination in the amount of $2,460.00 for a plastic surgery assessment proposed in a treatment and assessment plan dated June 23, 2020?

4. Is the Applicant entitled to the cost of an examination in the amount of $2,855.50 for an orthopaedic assessment proposed in a treatment and assessment plan dated June 23, 2020?

5. Is the Applicant entitled to the cost of an examination in the amount of $1,795.00 for a driving rehabilitation assessment proposed in a treatment and assessment plan dated June 1, 2020?

6. Is the Applicant entitled to a medical benefit in the amount of $4,916.08 for driving rehabilitation treatment sessions proposed in a treatment and assessment plan dated July 7, 2020?

7. Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

8. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the psychological assessment plan dated December 5, 2019 is reasonable and necessary as a result of the accident, subject to the $2,000.00 funding limit provided by section 25(5)(a) of the Schedule, plus interest pursuant to section 51 of the Schedule.

4The Respondent is liable to pay the Applicant an award in the amount of $220.00.

5The Applicant is not entitled to the remaining benefits in dispute, nor interest.

BACKGROUND

6The Applicant lost control of the vehicle she was driving on the highway and the vehicle rolled over several times during the accident. Compounding the situation, the Applicant was not wearing a seatbelt and was ejected from the vehicle. She was taken from the scene to the hospital by ambulance and later air-lifted to another hospital. She sustained multiple injuries, predominated by ankle, hip, foot, and shoulder fractures. She was hospitalized for 12 days and required surgery for her ankle fracture and the insertion of hardware. The combination of lower body injuries left her unable to weight bear until March 31, 2017, when she was approved to use crutches.

7However, the Applicant never initiated a claim for benefits in the immediate aftermath of her accident. In fact, no application for benefits was submitted to the Respondent until August 7, 2018, almost a year-and-a-half following the accident.

ANALYSIS

NEBs

8I find that the Applicant is not entitled to NEBs because she failed to submit a disability certificate during the period she claims entitlement to the benefit. Further, I find no evidence that the Respondent failed to uphold its obligation to provide the Applicant with the appropriate application forms and information to assist her in applying for benefits.

9Pursuant to section 32(1) of the Schedule, a person who intends to apply for accident benefits must notify the insurer of the intention no later than the 7th day following the circumstances arose that give rise to the entitlement of benefits. Section 32(1) obliges the Respondent to provide the appropriate forms, written explanation of the benefits available, information to assist the Applicant in apply for benefits, and information on the election of specified benefits such as income replacement benefits or NEBs.

10Section 36(3) of the Schedule disentitles the Applicant from receiving a specified benefit prior to the submission of a completed disability certificate. Section 12(3)(c) of the Schedule limits the period for claiming NEBs to no longer than 104 weeks following the accident.

11The Applicant submits that she is entitled to benefits that should have been made available to her immediately following the accident but were not. To her, the Respondent knew about her accident but failed to follow up with her about it or provide her with the appropriate forms to initiate a claim for accident benefits. I infer from these submissions that the Applicant claims entitlement to NEBs for the period pre-dating the submission of a disability certificate.

12The Respondent suggests that it was unaware of the accident and submits that the Applicant is not entitled to benefits prior to initiating her claim. It further submits that the Applicant is not entitled to NEBs because she failed to submit a completed disability certificate within 104 weeks of the accident, when her potential entitlement to the benefit expired. I agree with the Respondent.

13I find that the Applicant has provided no evidence demonstrating that the Respondent was ever notified that a vehicle it insured was involved in an accident. In the Applicant’s case, the accident occurred while she was the sole driver of a vehicle that neither she, nor anyone in her immediate family, owned and that she was not a named insured on the policy. There is no evidence that the owner of the vehicle, or anyone else, contacted Allstate to advise them of the accident or initiate a claim for benefits until the Applicant submitted an incomplete OCF-1, on August 29, 2018.

14I am unable to accept the Applicant’s position that the Respondent failed to provide her with information regarding her access to benefits. The Respondent does not have a property damage file for the insured vehicle. The insured vehicle, which the Applicant was driving at the time of the at-fault collision, had no collision coverage and, instead, had only direct compensation property damage coverage. Thus, the policy covering the vehicle only permits the recovery of property damage to the extent the driver of the insured vehicle was not at fault. I conclude that the Respondent was unaware that a vehicle it insured was involved in a single-vehicle accident because it was never given notice that an accident occurred and that someone may be entitled to benefits. The first date noted in the adjuster’s log notes is September 7, 2018. There is no evidence, reason, or rationale as to how or why the Respondent would be in contact with the Applicant prior to her submitting a claim for benefits.

15The Applicant knows the owner of the vehicle she was driving and was able to obtain the owner’s insurance information for the purpose of initiating a claim for benefits. In the absence of a property damage file, the Applicant was free to contact the owner of the vehicle to get the requisite information to initiate her claim. It is unreasonable to expect the Respondent to contact its insured when it is unaware of any accident.

16The Applicant also had the option of summonsing the owner of the vehicle to provide evidence for this hearing. The owner of the vehicle could provide evidence to confirm or deny that they notified the Respondent of the accident. Instead, the Applicant puts all the responsibility on the Respondent and takes no ownership over her failure to initiate her claim for benefits.

17The Applicant is not entitled to NEBs by operation of section 36(3) of the Schedule. The Applicant’s OCF-3 is dated May 27, 2019 and was submitted September 6, 2019. The 104 week expiration passed on March 9, 2019. The legislation is clear that there is no entitlement before the submission of a completed disability certificate. There is no provision in the Schedule which would entitle the Applicant to NEBs prior to submitting a completed disability certificate.

18The onus is on the Applicant to demonstrate that the medical and rehabilitation benefits she seeks are reasonable and necessary as a result of the subject accident.

Psychological Assessment

19I find that the psychological assessment plan, dated December 5, 2019 is reasonable and necessary as a result of the accident, subject to the $2,000.00 funding limit provided by section 25(5)(a) of the Schedule and $200.00 plus HST for the completion of forms, as permitted in the Professional Services Guideline – Superintendent’s Guideline No. 03/14 (“the PSG”).

20The Applicant submits that the severity of the accident and her injuries warrant funding for a psychological assessment. She further submits that a subsequent psychological treatment plan was approved by the Respondent, which suggests that the assessment to develop the treatment plan is reasonable and necessary.

21I conclude that the psychological assessment conducted to develop the approved psychological treatment plan is reasonable and necessary as a result of the accident. The Respondent approved funding for psychological treatment as recommended in this assessment report. I infer from this that the psychological treatment plan could not have been completed without an assessment in advance.

22The Applicant’s failure to directly identify the evidence supporting her claim is not fatal to her claim. Indeed, the Applicant led little evidence to support her claim for the psychological assessment. However, the adjuster’s log notes provided by the Respondent indicate that the psychological treatment plan was approved. As a result, I find that the evidence demonstrates that the Applicant sustained psychological injuries as a result of the accident and that an assessment is reasonable and necessary to develop a treatment plan to address those injuries.

23The assessment is subject to the $2,000.00 funding limit provide in section 25(5)(a) of the Schedule and $200.00 plus HST for the completion of forms as permitted in the PSG. The Applicant provided no rationale for why the psychological assessment should not be subject to the same funding limits as all other assessments. While the assessment is reasonable and necessary, the Respondent is not liable to pay more than what is obligated to do so.

24Having found that the psychological assessment plan is reasonable and necessary, it follows that interest is payable pursuant to section 51 of the Schedule.

Plastic surgery assessment

25I find that the Applicant has not met her onus to demonstrate that the plastic surgery assessment plan is reasonable and necessary as a result of the accident.

26The Applicant submits that the plastic surgery assessment is “a no-brainer” considering the severity of the accident and the Applicant’s injuries. The Applicant incurred the assessment following the denial by the Respondent and suggests that the conclusions in the report, which indicate that scarring can negatively influence body image, demonstrate that it is reasonable and necessary. The Respondent denied funding for the assessment on the basis that the plan was submitted prior to the submission of a completed application for accident benefits. It failed to address the issue any further in its submissions.

27I give no weight to the plastic surgery report by Dr. S. Krajden, plastic surgeon, dated February 28, 2021. The plastic surgery report was completed following an assessment of the Applicant on July 31, 2020. Dr. Krajden observed that the Applicant had multiple scars on her lower left extremity and made several recommendations, including various laser treatments. However, Dr. Krajden’s report fails to acknowledge that the Applicant sustained a compound left tibia fracture on or around June 6, 2018, which required the insertion of a stabilizing rod, as demonstrated in her decoded OHIP summary. Instead, Dr. Krajden attributes the Applicant’s presentation entirely to the subject accident. The index of documents reviewed for the assessment was not included in the evidence before me, but it appears that Dr. Krajden’s opinion was provided without knowledge of the Applicant’s left leg fracture, subsequent to the accident.

28No other medical practitioner has recommended a plastic surgery consultation as a result of the accident. The Applicant has seen multiple medical professionals, such as orthopaedic surgeons and psychologists, following the accident, but none recommended a plastic surgery consultation. In fact, the plastic surgery report states that the Applicant was referred to Dr. Krajden by her counsel. I understand that counsel is not precluded from making referrals to medical practitioners; however, the absence of a referral from one of the Applicant’s many treating physicians is remarkable.

29While the Applicant sustained some scarring on her left ankle as a result of the accident, I find that she has not demonstrated that the plastic surgery assessment is reasonable and necessary as a result of the subject accident.

Orthopaedic assessment

30I find that the Applicant has not met her onus to demonstrate that the proposed orthopaedic assessment is reasonable and necessary as a result of the subject accident.

31The Applicant submits that she suffered from complex polytrauma and that her consultations with an orthopaedic surgeon through an OHIP-funded fracture clinic is insufficient. The Respondent submits that the Applicant could have sought an orthopaedic assessment through OHIP and questions why this assessment is reasonable and necessary as a result of the subject accident.

32I find no evidence demonstrating that the Applicant requires further orthopaedic examination or that her orthopaedic care through OHIP is insufficient. Indeed, the Applicant sustained polytrauma in the accident and required surgical intervention thereafter. However, the Applicant received orthopaedic care through OHIP and there is no evidence demonstrating that her care is restricted to insufficient five-minute consultations as she suggests. The Applicant led no evidence indicating that her OHIP-funded orthopaedic care was insufficient or needed to be supplemented in any way and section 47(2) of the Schedule provides that the Respondent is not liable to pay a medical benefit which is reasonably available to the Applicant through any other insurance plan or law, such as OHIP.

33While the Applicant indeed sustained polytrauma as a result of the accident, it does not automatically entitle her to ongoing medical and rehabilitation benefits. As a result, she has failed to meet her onus to demonstrate than an orthopaedic assessment is reasonable and necessary as a result of the accident.

Driving rehabilitation assessment and treatment plans

34I find that the Applicant has not met her onus to demonstrate that she requires a driving rehabilitation assessment and treatment.

35The Applicant submits that she suffers from vehicular and passenger anxiety, which warrants the driving rehabilitation assessment and treatment. The Respondent suggests that the Applicant has not met her burden to demonstrate entitlement to the driving rehabilitation assessment and treatment. I agree with the Respondent.

36The Applicant should pursue the approved psychological treatment prior to seeking additional funding for in-vehicle treatment. By approving psychological treatment, the Respondent conceded that the Applicant sustained a psychological injury as a result of the accident. However, this does not mean that any and all psychological assessments are reasonable and necessary as a result of the accident. At the time of this hearing, the Applicant had not engaged in any of the psychological treatment that the Respondent approved. The Applicant should proceed with the approved psychological treatment first and determine whether that is sufficient to address any initial concerns of vehicular or passenger anxiety. It is possible that treatment such as psychotherapy could be sufficient to curb the Applicant’s symptoms. Approving additional assessments and treatment before the Applicant incurs any of the approved psychological treatment results in a duplication or services. This renders the driving rehabilitation assessment and treatment plans to be not reasonable and necessary.

37I give no weight to the driver’s rehabilitation report by C. Challenger and Dr. K. Charbonneau, psychologist, dated July 5, 2020. The driver’s rehabilitation assessment appears to have been recommended based on a single complaint of driving anxiety made during the psychological assessment. There are no other clinical notes and records which demonstrate that the Applicant suffers from vehicular phobia either as a passenger or a driver. This report discusses the “cycle of avoidance” which affects people with vehicular anxiety, but the Applicant does not report avoidance behaviour and it is clear from the report that, following the accident, the Applicant has driven a vehicle and rode in one as a passenger. Lastly, the driver’s rehabilitation report indicates at the outset that the Applicant no longer holds a driver’s licence but concludes with a recommendation that the Applicant engage in in-vehicle driver treatment. I fail to see how this is possible and the Applicant’s submissions and evidence fail to explain it.

38I have no doubt that the subject accident was a traumatic event for the Applicant and seeking psychological treatment following such an event is unsurprising. However, traumatic events do not render all psychological treatment and assessments to be reasonable and necessary. The onus remains with the Applicant to demonstrate that the driver’s rehabilitation assessment and treatment plans are reasonable and necessary as a result of the accident. Here, there is no compelling evidence demonstrating that the Applicant suffers from driver and passenger anxiety to the extent that it requires an assessment and treatment. Thus, the Applicant has not met that onus with respect to these treatment and assessment plans.

Award

39I find that the Applicant is entitled to an award in the amount of $220.00 because the Respondent unreasonably withheld approval of the psychological assessment plan. Pursuant to section 10 of Reg. 664, an award of up to 50% of the amounts withheld may be payable by the Respondent if it is determined that it unreasonably withheld or delayed payment of a benefit. Awards are determined on an individual basis and generally depend on a finding that the Respondent’s withholding or delay was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

40The Applicant submits that she is entitled to an award because the Respondent failed to properly adjust her claim. She submits that its review of her medical evidence was insufficient, and that her injuries have worsened over time as a result. The Respondent highlights several instances whereby the Applicant failed to comply with the procedures for claiming benefits, including a failure to attend insurer’s examinations, and submits that it is difficult to envisage it being found to be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

41I find that the Respondent’s refusal to fund a psychological assessment, in light of its approval for psychological treatment, is behaviour that meets the threshold for an award. In this case, the psychological assessment was for Dr. V. Mpumlwana, psychologist, and C. Roach, registered psychotherapist, to conduct a comprehensive psychological assessment of the Applicant. That very assessment and report formed the basis of the psychological treatment that was approved by the Respondent. It logically follows that the psychological assessment is reasonable and necessary because the reasonable and necessary treatment is derived as a result of the assessment. This is the sole basis for which I order an award.

42I acknowledge that the Applicant failed to comply with the procedures for claiming benefits as outlined in the Schedule. However, such behaviour does not permit the Respondent to withhold the payment of reasonable and necessary medical benefits.

ORDER

43The psychological assessment plan is reasonable and necessary as a result of the accident, subject to the $2,000.00 funding limit provided by section 25(5)(a) of the Schedule and $200.00 plus HST for the completion of forms, as permitted in the PSG. Pursuant to section 51 of the Schedule, the Applicant is entitled to interest relating to this treatment and assessment plan.

44The Respondent is liable to pay the Applicant an award in the amount of $220.00.

45The Applicant is not entitled to the remaining benefits in dispute, nor interest.