Licence Appeal Tribunal File Number: 21-004059/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:
[AS]
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, [AS]’s (“A.S.”) mother was involved in an automobile accident. A.S. seeks benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). A.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.
2A.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.
ISSES
3The issues in dispute are:
i. Is A.S. entitled to $6,791.56 for social rehabilitation counselling proposed by Christie McClure Rehabilitation Services in a treatment plan (OCF-18) dated October 13, 2020?
ii. Is A.S entitled to $759.35 for vocational/academic counselling proposed by Goode Educational Consultants in an OCF-18 dated April 29, 2020?
iii. Is A.S. entitled to interest on any overdue payment of benefits?
RESULT
4I find that A.S. is not entitled to payment of the October 13, 2020 OCF-18 or the April 29, 2020 OF-18. No interest is payable.
ANALYSIS
OCF-18 in the amount of $6,791.56 dated October 13, 2020
5Sections 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.
6I find that A.S. has not met her onus of proving on a balance of probabilities that the October 13, 2020 OCF-18 is reasonable and necessary.
7The October 13, 2020 OCF-18 was completed by [the doctor], physician, and sought funding for 12 sessions of “facilitation, interpersonal relationships”; services―planning, preparation and brokerage; provider travel time; claimant transportation to treatment; expenses related to goals as per Social Worker to promote community integration; and form completion. The goals of the OCF-18 were to decrease isolation and facilitate social integration, increase social comfort and skills and return to activities of normal living.
8A.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 A.S. suffered the following as a result of the accident―unspecified mood (affective) disorder; anxiety disorder (unspecified); and other problems related to primary support group including family circumstances. A.S. also relies on a January 24, 2020 social work progress report from Mind Matters Counselling Services, and a November 14, 2020 letter from [the social worker], social worker.
9In support of its denial, Aviva relies on the January 14, 2019 and October 16, 2020 s. 44 reports of psychologists, Dr. Saunders and Dr. Nemeth. At the December 7, 2018 assessment, A.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, Dr. Saunders opined that witnessing her mother’s significant hospital care had exacerbated her pre-existing symptoms. Dr. Saunders concluded that A.S. had not recovered from her exacerbated symptoms, and further treatment was reasonable and necessary.
10Dr. Nemeth assessed A.S. on September 28, 2020, at which time A.S. reported her pre-existing symptoms as a result of her parent’s separation and her feeling of rejection from her father. A.S. also reported pre-existing depression, for which she sought counselling. A.S. further reported to Dr. Nemeth that her mother’s accident was distressing, but that her parents’ separation was especially hard for her. A.S. noted that while there are some things that are different with her mother, she commented that the most important things such as love, and affection have remained the same. Dr. Nemeth opined that A.S. suffered from a major depressive disorder and adjustment disorder with mixed anxiety and depressed mood before the accident. Dr. Nemeth concluded that despite the temporary emotional distress of her mother’s accident, A.S.’s symptoms had resolved, and her ongoing symptoms were as a result of her parent’s separation.
11In this case, I am not persuaded by the evidence 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. Admittedly, she reported as much to January and November 2020 letters and the s. 44 assessors.
12Further, in accordance with the Schedule, the OCF-18s must be reasonable and necessary as a result of the accident. I find the recommendations of the OCF-18 do not address any accident-related impairments. Further, the evidence supports that, but for the divorce of her parents and loss of her grandfather, A.S.’s symptoms are largely the same as they were pre-accident.
13On the evidence, I find that A.S. has not met her burden of proving on a balance of probabilities that the October 13, 2020 OCF-18 is reasonable and necessary.
OCF-18 in the amount of $759.35 dated April 29, 2020
14The 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.
15A.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 A.S.’s mother suffered as a result of the accident.
17I agree with Aviva.
18A.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. 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.
19Accordingly, I find that A.S. has not met her onus, on a balance of probabilities that the April 29, 2020 OCF-18 is reasonable and necessary.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
21Having found that A.S. is not entitled to any of the disputed OCF-18s, no interest is payable.
ORDER
22For the reasons outlined above, I find that A.S. is not entitled to payment of the October 13, 2020 and April 29, 2020 OCF-18s. As a result, no interest is payable.
23The application is dismissed.
Released: July 19, 2023
__________________________
Derek Grant
Adjudicator