L.L. v. Travelers Insurance, 2024 CanLII 2642

Citation: L.L. v. Travelers Insurance, 2024 ONLAT 22-000432/AABS

Licence Appeal Tribunal File Number: 22-000432/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:

L.L. (A minor by their litigation guardian, K.Y.)

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Greg Neinstein, Counsel

For the Respondent: Krista Groen, Counsel

HEARD: By way of written submissions

OVERVIEW

1J. L. (the applicant’s father) and K. Y. (the applicant’s mother) were involved in an automobile accident on February 20, 2018, and sought benefits for their minor-aged child, L.L. (the “applicant”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). For context, the applicant was not physically involved in the accident, but claims he suffered psychological injuries that resulted from his parents’ involvement in the accident. The applicant was denied benefits by Travelers Insurance (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 psycho-educational assessment in the amount of $2,200.00, proposed by Storrie, Velikonja & Associates in a treatment plan (the “OCF-18”) dated October 14, 2021?

ii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

3The applicant is not entitled to the disputed OCF-18 or interest.

ANALYSIS

The applicant’s entitlement to a psychoeducational assessment in the amount of $2,200.00

4I find the applicant has not met his onus to show this OCF-18 is reasonable and necessary.

5To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant must show, 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.

6The applicant submits he sustained psychological injuries that resulted from his parents’ accident. The applicant relies on the November 2019 report of Dr. [D.N] (psychiatrist), which diagnoses an anxiety disorder (with features of PTSD), and likely pre-existing known ADHD (with predominantly inattentive presentation). The applicant also points to the clinical notes and records of Dr. [R.W] (paediatrician) and Ms. [N.H] (child youth counsellor), as well as a referral letter for a psychoeducational assessment by Ms. [A.H] (rehabilitation consultant), and a series of report cards from grades two to seven at two different elementary schools.

7The respondent argues that the applicant has failed to show his emotional and cognitive issues were caused by the accident, and points to evidence of pre-existing cognitive and behavioural issues consistent with those the applicant claims are related to the accident. The respondent also claims that evidence contemporaneous to the OCF-18 shows the applicant’s cognition and behaviour had improved, and that there are collateral benefits available from the school board to obtain a psycho-educational assessment.

8I am not convinced the goals of this OCF-18, completed in November 2021 by Dr. [C.M] (psychologist), are reasonable. The applicant’s submissions say the OCF-18’s goal is to evaluate the emotional and cognitive symptoms reported by the applicant’s mother and teacher. However, the applicant’s submissions do not pinpoint this goal in evidence, and part 9 of the OCF-18 does not identify a treatment goal consistent with the applicant’s submission—or specify any treatment goals for that matter. It follows then, that I am unable to determine if the treatment goal of the OCF-18 can reasonably be met by a psychoeducational assessment because I do not know what this goal is.

9Further, I agree with the respondent’s position on contemporaneous evidence. I was not pointed to recent examples of the trauma and anxiety expressed in Ms. [H]’s clinical notes of May 8, 2019, to indicate this is an ongoing concern. I place less weight on Dr. [W]’s records because they end in 2019 and therefore cannot offer an opinion on the OCF-18 at issue. In fact, the applicant does not point me to a recommendation made by Dr. [W] at any time for a psychoeducational assessment. I also place less weight on Ms. [H]’s referral letter because she relies on Dr.[N]’s consultation report, which does not include a recommendation for a psychoeducation assessment.

10In my view, the most relevant evidence pertaining to the applicant’s concentration, focus and attention at school—which make up the bulk of the concerns identified in the applicant’s submissions—are the report cards issued by the applicant’s teachers. While I accept the applicant ‘s teachers continue to see opportunities for the applicant to improve his attention, focus and concentration, I am persuaded by the respondent’s submissions, which point out the applicant’s report cards show improvement in the applicant’s learning skills, work habits, and academic performance in and around November 2021 when the OCF-18 was completed. For example, where Dr. [N] observed the applicant needed improvement in almost all learning skill and work habit areas up to 2019, these areas were all rated as satisfactory or good from November 2020 onwards. Dr. [N]’s report also spoke to the applicant’s academic performance and highlighted a D grade in French language studies in particular; the applicant was not graded less than a B- in this subject from November 2020 onwards. In fact, the applicant’s most recent report card in June 2022 indicates he is demonstrating the required knowledge and skills in all his subjects, and is consistently meeting the provincial standard.

11While I accept the diagnoses offered by Dr. [N], I am not persuaded they establish the OCF-18 as reasonable and necessary because Dr. [N] did not recommend a psychoeducational assessment to address either disorder, and because some of the factors considered by Dr. [N] in his analysis (i.e., the applicant’s learning skills, work habits, and grades) have changed for the better in the intervening two years.

12Taken together on balance, I find this evidence does not meet the applicant’s onus to show the OCF-18 for a psychoeducational assessment is reasonable and necessary.

Interest

13Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There is no benefit owing and therefore interest does not apply.

ORDER

14The applicant is not entitled to the OCF-18 at issue, nor interest. The application is dismissed.