Licence Appeal Tribunal File Number: 22-011414/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:
Brenda Clarke
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
M. Jennifer Cosentino, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Brenda Clarke (“the Applicant”) was involved in an automobile accident on July 25, 2019, and sought benefits from Aviva Insurance Company of Canada (“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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the Applicant entitled to a medical benefit in the amount of $2,560.00, less $1,878.28 approved by the Respondent, for a psychological treatment plan proposed by 101 Assessments, dated July 11, 2022?
ii. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a cognitive assessment plan proposed by 101 Assessments, dated September 4, 2020?
iii. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
3I find that the Applicant has not met her onus to demonstrate entitlement to the unapproved balance of the psychological treatment plan. She is barred from proceeding with her claim for entitlement to a cognitive assessment, pursuant to section 55 of the Schedule because she never disputed the denial within two years, and never attended a properly scheduled insurer’s examination in relation to the plan. No interest is owed as no payments went overdue.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck from behind after making a right turn at a suburban intersection. She sought no medical attention at the scene of the accident, but followed-up with her family physician, Dr. Y. Papadopoulos about a month later and was referred to physiotherapy.
5The Applicant developed psychological injuries following the accident. As a result, she was no longer subject to the Minor Injury Guideline, nor the $3,500.00 funding limit for a minor injury.
6At issue is her entitlement to a partially approved psychological treatment plan, as well as a cognitive assessment plan. I find that she is statute-barred from disputing her entitlement to the cognitive assessment, and that she has not met her onus to demonstrate that the unapproved balance of the psychological treatment plan is reasonable and necessary as a result of the accident.
ANALYSIS
The Applicant is not entitled to the unapproved balance of the psychological treatment plan
7This dispute relates to the hourly rate of the service provider. The Applicant received services from a registered psychotherapist – a profession that is not included in the The Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”). She submits that the plan should be paid at the hourly rate of a psychologist, as outlined in the PSG. She submits that the Tribunal should follow the reasoning in J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“JV v Intact”), which found that a psychotherapist providing cognitive behavioral therapy was entitled to the rate of a psychologist, who effectively provides the same service. The Respondent submits that the rate for a psychotherapist is $58.19 per hour and that the Applicant has not given any justification for why the hourly rate should be paid at the rate of a psychologist.
8I find that the Applicant has not demonstrated that she is entitled to the enhanced hourly rate for a psychologist. The Applicant concedes that she received services from a psychotherapist, who is an unregulated service provider. The distinguishing factor in JV v Intact is that the psychotherapist’s education and experience in providing cognitive behavioral therapy services was akin to the services of a psychologist. Here, the Applicant has not provided any information as to the training or experience of the service provider, nor has she provided any information on the services provided by the psychotherapist that would permit me to find that they are providing services akin to the services of a psychologist. Accordingly, I find that the Applicant has not demonstrated that she is entitled to an enhanced hourly rate as sought.
Cognitive assessment plan, dated September 4, 2020
9I find that the Applicant is barred from disputing her entitlement to the plan because she never disputed the denial within two years, and never attended a properly scheduled insurer’s examination in relation to the plan.
10I find that the Applicant is barred from disputing her entitlement to this treatment and assessment plan because she submitted her application more than two years after the denial and because she never attended a properly scheduled insurer’s examination in relation to the plan in dispute. The plan, dated September 4, 2020, was denied on September 11, 2020. The Applicant’s application to the Tribunal was filed on October 20, 2022, more than two years after the denial. The Applicant had an opportunity to address this issue in reply, including disputing the validity and/or compliance of the notice, but chose not to do so. Likewise, she does not dispute that the application was submitted more than two years after the denial and never made any submissions on whether the deadline to file an application should be extended, pursuant to section 7 of the Licence Appeal Tribunal Act.
11I find that the Applicant is also barred from proceeding with her application to dispute entitlement to this plan because she never attended a properly scheduled IE. On September 23, 2020, the Respondent sent the Applicant notice that it requires an IE in relation to this plan, and scheduled an assessment for November 11, 2020. On November 5, 2020, the Applicant asked that the assessment be rescheduled to accommodate her work schedule. The assessment was rescheduled for February 24, 2021, however, the Applicant wrote to the assessment vendor and cancelled the assessment prior to the scheduled date. On February 23, 2021, the Respondent wrote to the Applicant and confirmed that she cancelled the IE and advised that it will not consider the plan without the assessment. To-date, the Applicant has not attended the subject IE. Despite being afforded an opportunity to respond, she did not dispute the content of the notices, or that she is required to attend the IE, or that she is barred from proceeding with her application to dispute entitlement to the plan.
12Accordingly, pursuant to section 55(1)(2) and section 56 of the Schedule, the Applicant is barred from disputing entitlement to this plan.
Interest
13Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that no benefits are payable, it follows that no benefits are overdue, and no interest is payable.
CONCLUSION AND ORDER
14The Applicant has not met her onus to demonstrate entitlement to the unapproved balance of the psychological treatment plan.
15The Applicant is barred from disputing her entitlement to the cognitive assessment plan pursuant to sections 55 and 56 of the Schedule because she never disputed the denial within two years, and never attended a properly scheduled insurer’s examination in relation to the plan.
16No interest is payable.
17The application is dismissed.
Released: December 2, 2024
Brian Norris
Adjudicator```