Licence Appeal Tribunal File Number: 22-011138/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:
Kevin Fairweather
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
WRITTEN SUBMISSIONS:
Applicant: Francesco Vumbaca, Counsel
Respondent: Kevin So, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kevin Fairweather, the applicant, was involved in an automobile accident on October 13, 2020, and sought benefits 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue is:
i. Is the applicant barred from proceeding due to his non-attendance at the physiatry assessment of Dr. Y. Marchuk on June 4, 2022?
SUBSTANTIVE ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 10, 2020 to October 13, 2022?
ii. Is the applicant entitled to $120.00 ($1,367.60 less $1,247.60 approved) for ppe gear (“PPE”) proposed by Marko Pavacic of Downsview Healthcare in a treatment plan/OCF-18 (“plan”) submitted on February 3, 2021, and partially approved on February 17, 2021?
iii. Is the applicant entitled to $1,800.00 for shockwave therapy proposed by Saranjit Khaira of Downsview Healthcare, in a plan submitted on February 18, 2021, and denied on May 25, 2021?
iv. Is the applicant entitled to $1,745.38 ($3,485.98 less $1,740.60 approved) for psychological counselling proposed by Jacqueline Brunshaw of Downsview Healthcare, in a plan submitted on July 12, 2021, partially approved on August 4, 2021?
v. Is the applicant entitled to $1,925.68 for multidisciplinary physical therapy proposed by Oleksandr Pivtoan of Downsview Healthcare, in a plan submitted on April 19, 2022, and denied on July 5, 2022?
vi. Is the applicant entitled to $2,486.00 for a chronic pain assessment proposed by Grigory Karmy of Downsview Healthcare, in a plan submitted on April 25, 2022, and denied on July 5, 2022?
vii. Is the applicant entitled to $1,402.33 ($3,697.14 less $2,294.81 approved) for medical services proposed by Downsview Healthcare, in a plan submitted on April 26, 2022, and denied on July 5, 2022?
viii. Is the applicant entitled to $1,639.00 for multidisciplinary physical therapy proposed by Domenic Minnella of Downsview Healthcare, in a plan submitted on December 20, 2022, and denied on December 21, 2022?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
4In their submissions, the respondent advised that they were not proceeding with the preliminary issue.
5The matter was originally scheduled to be heard by way of a videoconference hearing. The applicant brought a motion dated January 9, 2024, to convert the format to a written hearing. The motion was granted. The applicant advised in his motion that he was withdrawing the issue of entitlement to a non-earner benefit (i above).
RESULT
6The applicant is not entitled to the treatment plans at issue.
7The respondent is not liable to pay an award.
8The applicant is not entitled to interest.
ANALYSIS
9To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden 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.
The applicant is not entitled to PPE
10I find that the applicant is not entitled to PPE because it is included under the definition of “administrative costs” and “overhead” in the Financial Services Commission of Ontario’s Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”).
11The treatment plan in question is a plan for chiropractic treatment. The respondent approved the plan except for $120.00 for PPE. The applicant submits that he is entitled to the portion of the treatment plan corresponding to