Citation: [J.S.] v. Aviva Insurance Company, 2023 ONLAT 21-004036/AABS

Licence Appeal Tribunal File Number: 21-004036/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:

[JS]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Charles Gluckstein, Counsel

For the Respondent:

James Brown, Counsel

HEARD:

By way of written submissions

OVERVIEW

1On May 18, 2017, [JS]’s (“J.S.”) mother was involved in an automobile accident. J.S. seeks benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). J.S. 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.

2J.S. was not involved in the accident herself but has claimed accident benefits pursuant to part (a)(ii) of the definition of “insured person” under the Schedule, on the basis that she suffered a psychological or mental injury as a result of the physical injuries that her mother sustained.

ISSUES

1The issues in dispute are:

i. Is J.S. entitled to $6,241.27 for social rehabilitation counselling proposed by Renew Rehab in a treatment plan (OCF-18) dated July 15, 2020?

ii. Is J.S. entitled to $7,000.00 for vocational/academic counselling proposed by Mind Matters in a plan dated August 28, 2020?

iii. Is J.S. entitled to $759.35 for vocational/academic counselling proposed by Goode Educational Consultants in a plan dated April 29, 2020?

iv. Is J.S. entitled to interest on any overdue payment of benefits?

RESULT

2I find that J.S. is not entitled to payment for the July 15, 2020, August 28, 2020 or the April 29, 2020 OCF-18. As such, no interest is payable.

ANALYSIS

OCF-18 in the amount of $6,241.27 dated July 15, 2020

3Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

4I find that J.S. has not met her onus of proving on a balance of probabilities that the July 15, 2020 OCF-18 is reasonable and necessary.

5The July 15, 2020 OCF-18 was submitted by [the doctor], physician, and sought funding for 13 sessions of social skills training; services―planning, preparation and brokerage; provider travel time; claimant transportation to treatment; and form completion. The goals of the OCF-18 were to provide opportunities to open communication regarding ongoing stressors; provide opportunities to explore vocational and academic possibilities; to facilitate creating a positive, structured environment to promote overall well-being; to learn coping strategies for the client’s new role within the family; and return to activities of normal living.

6J.S. submits that she suffers ongoing psychological and emotional impairments as a result of the accident and the impact the accident had on her mother. She relies on the March 6, 2018 Disability Certificate from Alana MacIntyre, who noted that J.S. suffered the following as a result of the accident―unspecified mood (affective) disorder; anxiety disorder; and other problems related to primary support group including family circumstances. J.S. also relies on a December 15, 2020 social work progress report from Mind Matters Counselling Services.

7In the December 15, 2020 letter, social worker [the social worker] reported that despite pre-accident emotional and familial challenges, there were no observations that such challenges were a barrier to her future emotional, educational or vocational goals. [the social worker] went on to note that the timing of the accident was critical as it occurred during a move to a remote town in Northern Ontario, which impacted J.S.’s ability to appropriately integrate herself into the community, and therefore develop new interpersonal relationships or vocational opportunities. [the social worker] concluded that J.S. has not reached any condition close to maximum improvement.

8In support of its denial, Aviva relies on the January 14, 2019 s. 44 report of psychologist, Dr. Saunders and an October 16, 2020 and May 3, 2020 addendum s. 44 report of psychologist Dr. Nemeth. At the December 7, 2018 assessment, J.S. reported to Dr. Saunders that she suffered from pre-accident symptoms of dysphoria following her parents’ separation in 2008 and the passing of her grandfather. At the time of the December 2018 assessment, Dr. Saunders opined that witnessing her mother’s significant hospital care had exacerbated her pre-existing symptoms. Dr. Saunders concluded that J.S. had not recovered from her exacerbated symptoms, and further treatment was reasonable and necessary.

9Dr. Nemeth assessed J.S. on September 28, 2020. Regarding her personal history, J.S. reported that she did not enjoy school and at some point, she would start her own business, but she was never sure what it might be. She further reported that she finished high school, but she had not determined what she was going to do next. Notably, J.S. reported that she did not obtain a job, explaining that her family resided in low-income housing, therefore, if she worked, her earnings would go towards paying rent.

10Regarding her mother’s well-being around the time of the OCF-18 being submitted, J.S. reported that her mother is “relatively normal”, that she cannot carry heavy items, but she is still able to express love and affection. J.S. also reported pre-existing depression, for which she sought counselling. J.S. further reported to Dr. Nemeth that her parents’ separation was difficult for her. Dr. Nemeth opined that J.S. suffered from a major depressive disorder and queried avoidant and possibly borderline personality traits. Dr. Nemeth noted that J.S.’s pre-existing depressive symptomatology increased following her mother’s accident, due to the fear of whether or not her mother would survive and the pressure to look after her sisters. Dr. Nemeth opined that J.S. is now at her pre-accident level of psychological functioning, which I note was already significant based on J.S.’s self-reporting. Dr. Nemeth concluded that J.S. experienced emotional distress as a result of her mother’s accident, but it appears her symptoms have resolved.

11In this case, I find that J.S.’s evidence is not compelling that supports that the OCF-18 is reasonable and necessary. I find that the contemporaneous evidence of the loss of her grandfather and her parents’ divorce has had a far more significant impact on her emotional and psychological well-being. Further, her pre-accident psychological health was significant, which is also not accident related.

12Further, in accordance with the Schedule, the OCF-18s must be reasonable and necessary as a result of the accident. The lack of specificity in the OCF-18 as to what impairments the recommendation is meant to address does not assist in A.S. meeting her burden of proof. In addition, “problems related to education and literacy” do not speak to any accident-related impairments.

13On the evidence, I find that J.S. has not met her burden of proving on a balance of probabilities that the July 15, 2020 OCF-18 is reasonable and necessary.

OCF-18 in the amount of $7000.00 dated August 28, 2020

14The August 28, 2020 OCF-18 proposed 16 sessions of mental health counselling, provider travel time, planning, documentation, educational material and form completion. In completing the OCF-18, [the social worker], social worker noted that the goal of the treatment plan was for emotional regulation, and increased independence and community integration. [the social worker] recommended that social worker services be reinstated in order to reduce isolation and foster community participation.

15J.S. submits that the OCF-18 would help with planning her continued education and future goals.

16Aviva submits that the goals of the OCF-18 provide no correlation between the recommended treatment and any impairment resulting from the injuries that J.S.’s mother suffered as a result of the accident.

17I agree with Aviva.

18J.S. failed to direct me to any evidence that the August 2020 OCF-18 is reasonable and necessary to address injuries sustained as a result of the accident. The lack of specificity in the OCF-18 as to what impairments the recommendation is meant to address does not assist in the applicant meeting her burden of proof. In addition, “emotional regulation” and “increased independent and community integration”, do not speak to any accident-related impairments. This is especially so where J.S. reported to Dr. Nemeth that she was not a social person and found it difficult to form friendships before her mother’s accident. I find there is little difference in J.S.’s pre-and post-accident reporting of her emotional well-being, independence and community integration; in particular as it relates to her mother’s continued improvement more than three years post-accident.

19Accordingly, I find that J.S. has not met her onus, on a balance of probabilities that the August 28, 2020 OCF-18 is reasonable and necessary.

OCF-18 in the amount of $759.35 dated April 29, 2020

20The April 29, 2020 OCF-18 proposed a Strong Interest Inventory. It was noted by the author of the OCF-18, that the purpose of the recommendation was to address problems related to education and literacy. The results of the testing were for the purpose of informing post-secondary course programming and career planning.

21J.S. submits that the OCF-18 would help with planning her continued education and future goals.

22Aviva submits that the goals of the OCF-18 provide no correlation between the recommended treatment and any impairment resulting from the injuries that J.S.’s mother suffered as a result of the accident.

23I agree with Aviva.

24J.S. failed to direct me to any evidence that the April 2020 OCF-18 is reasonable and necessary to address injuries sustained as a result of the accident. Similar to the other OCF-18 in dispute discussed above, the lack of specificity in the OCF-18 as to what impairments the recommendation is meant to address does not assist the applicant meeting her burden of proof. In addition, “problems related to education and literacy” do not speak to any accident-related impairments. Lastly, J.S. admitted the challenge she faces with employment and the impact on the government housing rental price increasing due to J.S. earning income.

25Accordingly, I find that J.S. has not met her onus, on a balance of probabilities that the April 29, 2020 OCF-18 is reasonable and necessary.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

27Having found that J.S. is not entitled to any of the disputed OCF-18s, no interest is payable.

ORDER

28For the reasons outlined above, I find that J.S. is not entitled to payment of the August 28, 2020, July 15, 2020 and April 29, 2020 OCF-18s. As a result, no interest is payable.

3The application is dismissed.