[LAS] v. Aviva Insurance Company, 2023 CanLII 84392

Citation: [LAS] v. Aviva Insurance Company, 2023 CanLII 84392

Licence Appeal Tribunal File Number: 21-004063/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:

[LAS]

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

2LAS 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

3The issues in dispute are:

i. Is LAS entitled to $759.35 for vocational/academic counselling proposed by Goode Educational Consultants in a treatment plan (OCF-18) dated April 4, 2020?

ii. Is LAS entitled to $5,200.00 for social rehabilitation counselling proposed by Mind Matters in an OCF-18 dated August 28, 2020?

iii. Is LAS entitled to $4,996.86 for vocational/academic counselling proposed by Goode Educational Consultants in an OCF-18 dated April 29, 2020?

iv. Is LAS entitled to $6,791.56 for psychological services proposed by Christie McClure Rehabilitation Services in an OCF-18 dated October 13, 2020?

v. Is LAS entitled to interest on any overdue payment of benefits?

RESULT

4I find that LAS is not entitled to payment for the April 4, 2020, August 28, 2020, April 29, 2020 or the October 13, 2020 OCF-18s. As such, no interest is payable.

ANALYSIS

Are the OCF-18s reasonable and necessary

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.

6In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the cost of the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

7I find that LAS has failed to meet her onus.

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

8The 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 her future education and career goals.

9LAS submits that the OCF-18 would help with getting back on track with school, planning her education and future goals.

10Aviva submits that the goals of the OCF-18 provide no correlation between the recommended treatment and any impairment resulting from the injuries that LAS’s mother suffered as a result of the accident.

11I agree with Aviva.

12LAS 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, is unclear. In addition, “problems related to education and literacy”, do not speak to any accident-related impairments. Lastly, in the OCF-18, it’s noted that LAS has been facing difficulties with online learning, experiencing difficulty with comprehension of questions and a lack of technology, which impacts her success. Educational services and a Chromebook were recommended to “help meet grade level expectations.”

13I find the recommendation in the OCF-18, do not meet the test of reasonable and necessary for several reasons. First, her difficulties with online learning, are not indicated to be as a result of her mother’s accident, or any psychological impairment as a result of same. Second, the lack of technology is also not an accident-related issue. Third, it appears the aforementioned reasons are why LAS is not allegedly performing at grade-level expectations, not as a result of any post-accident psychological impairment. Her submissions fail to establish that the goals of the OCF-18 are reasonable, that the goals will be met to a reasonable degree, and that the cost of the goals are reasonable.

14Accordingly, I find that LAS has not met her onus, on a balance of probabilities that the April 29, 2020 OCF-18 is reasonable and necessary.

OCF-18 in the amount of $5,200.00 dated August 28, 2020

15The 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 goals of the treatment plan were for emotional regulation, community integration and fostering positive relationships. [the social worker] recommended that social worker services be reinstated in order to reduce isolation and foster community participation.

16LAS submits that the OCF-18 would help to increase social and community integration.

17Aviva submits that the goals of the OCF-18 provide no correlation between the recommended treatment and any impairment resulting from the injuries that LAS’s mother suffered as a result of the accident.

18I agree with Aviva.

19LAS 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, is unclear. In addition, “emotional regulation” and “increased independent and community integration”, do not speak to any accident-related impairments. This is especially so where LAS reported social isolation prior to the accident to Dr. Nemeth; that she had always been “a loner” with few close friends and hesitant to socially engage with her peers. Further, moving to the more remote community resulted in LAS changing schools and losing contact with her previous friends. I find there is little difference in LAS’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.

20Accordingly, I find that LAS 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 $4,996.86 dated April 29, 2020

21The April 29, 2020 OCF-18 proposed eight sessions of cognitive and learning therapy, preparation services, the cost of a Chromebook, eight facilitation of interpersonal relationship sessions, a Strong Interest Inventory, documentation, educational material and form completion. In completing the OCF-18, [the social worker], social worker noted that the goals of the treatment plan were to provide weekly tutoring sessions, educational consultation services for ongoing review and creation of education goals and strategies and funds to purchase necessary technological aids and related accessories to make education more engaging and impactful. [the social worker] further noted goal was to acquire relevant compensatory strategies in order to maximize potential for academic success.

22LAS relies on a January 24, 2020 social work report from [the social worker] and a November 13, 2020 letter from social worker, [the social worker]. In addition, LAS refers to a December 15, 2020 progress report from [the social worker]. Lastly, LAS points me to the clinical records from Stride Rehabilitation Services.

23Aviva relies on the s. 44 reports of Dr. Saunders, psychologist (January 14, 2019) and Dr. Nemeth (October 16, 2020), in support of its determination. Notably, when Dr. Saunders assessed LAS in December 2018, LAS reported repressing her feelings since the accident, and testing results indicted a mild level of depressive symptoms and anxiety. Dr. Saunders concluded that further treatment was reasonable. Dr. Nemeth opined that LAS did not reveal any evidence of psychological distress or dysfunction related to the accident. Objective testing did not reveal evidence of clinically significant symptomatology. Dr. Nemeth did note diagnoses of pre-existing ADHD, dyslexia and speech impediment; however, these were self-reported by LAS, and no records have been provided to support these diagnoses.

24I do not find LAS’s evidence persuasive. First, with respect to the documents from [the social worker], the social work report discussed the difficulties with the completion of community hours required to graduate, however, there was no consideration of whether any accident-related psychological impairment was the cause or a contributing factor. [the social worker]’ progress report noted improvement with social integration, however, there was no analysis of any ongoing psychological impairments or the impact of any psychological impairments as a result of her mother’s injuries. Second, [the social worker]’s letter noted LAS’s issues with self-confidence, social engagement, and the need for a marketable skillset for employment purposes. There is no reference to any ongoing psychological impairment caused by her mother’s accident-related injuries. Lastly, the clinical records of Stride Rehabilitation do not include any records of treatment for psychological impairments. The records do note that the treatment sessions were spent helping LAS complete the required community hours needed to graduate. I note additional sessions included an outing to see a movie, and assistance with performing housekeeping and laundry tasks.

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

OCF-18 in the amount of $6,791.56 dated October 13, 2020

26The October 13, 2020 OCF-18 was submitted by [the doctor], physician, who noted LAS’s injuries to be―other stressful life events affecting family and household; problems related to certain psychosocial circumstances; and other problems related to life-management difficulty. The October 2020 OCF-18 sought funding for 12 sessions of interpersonal relationships facilitation; services―planning, preparation and brokerage; provider travel time; claimant transportation to treatment; and form completion. The goals of the OCF-18 were to decrease isolation and social integration; increase social comfort and social skills; assist client with completing her 40-hour volunteer hours for school; and return to activities of normal living.

27LAS submits that the OCF-18 will assist with her ability to cope with changes related to her mother and the family household which has resulted in increased responsibilities and stress.

28I agree with Aviva that, while assisting LAS with furthering her education, securing employment and improving her participation in the community are commendable goals, these are not related to any psychological symptoms as a result of the injuries her mother suffered in the accident.

29Further, her submissions, nor the evidence, sufficiently address whether the treatment goals are reasonable, that the goals will be met to a reasonable degree, or that the costs of achieving the goals are reasonable.

30Despite LAS’s claims that she has suffered ongoing psychological symptoms, I find that her post-accident complaints, are not significantly different from her pre-accident mental health and well-being, going on over three years post-accident. I find that she has not demonstrated that the recommendations in the disputed OCF-18s address any ongoing psychological impairment as a result of the accident.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

32Having found that LAS is not entitled to any of the disputed OCF-18s, no interest is payable.

ORDER

33For the reasons outlined above, I find that LAS is not entitled to payment for the April 4, 2020, August 28, 2020, April 29, 2020 or the October 13, 2020 OCF-18s. As such, no interest is payable.