Licence Appeal Tribunal File Number: 22-006533/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:
Lacey Wodzinski
A minor by her litigation guardian, Tammy Wodzinski,
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Chris Beckett, Counsel
For the Respondent:
Geoffrey Keating, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Tammy Wodzinski, parent on behalf of a minor, the applicant, has a claim arising out of an automobile accident which occurred on April 22, 2016, and sought medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The respondent, Aviva Insurance Company of Canada denied the treatment in dispute on the basis that the treatment plan is not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,000.00 for vocational/academic training, proposed by Rehab First in a treatment plan/OCF-18 (“plan”) dated August 25, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has failed to demonstrate that the proposed treatment plan (OCF-18) is reasonable and necessary for her accident-related injuries. As a result, the OCF-18 in dispute is not payable. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
5The application is dismissed.
ANALYSIS
6To receive payment for a treatment plan (OCF-18) under 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. 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 same are reasonable.
Is the treatment plan for tutoring reasonable and necessary?
7I find that the OCF-18 dated August 25, 2021 by speech language pathologist, Jessica Chrapko in the amount of $2,000.00 for tutoring at Oxford Learning is not reasonable and necessary. The applicant relies on the OCF-18 report dated August 25, 2021 and letter dated November 29, 2019 by speech language pathologist, Jessica Chrapko, progress reports by rehabilitation therapist, Cassandra Sossi and social worker, Valerie Price, and s.44 insurer examination (“IE”) report dated May 11, 2022 by psychiatrist, Dr. Joel Nathan Eisen. In the OCF-18, Ms. Chrapko indicates the applicant suffers from emotional symptoms which interferes with her academic performance. In letter dated November 29, 2019, Ms. Chrapko recommends a cognitive communication assessment which has not been produced.
8The applicant points to progress reports by Ms. Sossi and Ms. Price which describe accident-related emotional and behavioural issues. In progress report dated July 20, 2017, Ms. Sossi indicates the applicant was not involved in an Individual Education Plan (“IEP”) at school in grade 3 and she was not performing at grade level. In addition, Ms. Sossi indicates that the applicant’s self-esteem, attention and behavioural issues result in difficulty with academic tasks. In progress report dated August 21, 2017, Ms. Price explains that the applicant receives therapy for emotional regulation and sleep hygiene to gradually move into her own bedroom.
9Dr. Eisen indicates in his report dated May 11, 2022, that the applicant has aggravated separation anxiety and obsessive-compulsive disorder, and that her intrusive thoughts interfere with her concentration. He further indicates that the applicant has received counselling from a social worker, she is currently involved in an IEP at school in grade 8 and her grades have improved.
10In response, the respondent scheduled a s.44 IE by psychiatrist, Dr. Eisen who found no speech language pathology issues, auditory, academic, learning or behavioural issues as a result of the accident. The respondent points to the applicant’s academic records which disclose a pre-existing learning disability, with an IEP in place since grade 4 and improved academic performance within the IEP in 2018-2020. The school records indicate that the applicant received a psychoeducational assessment at school which has not been produced. The applicant does not follow the curriculum expectations for the core subjects in the IEP. The school records indicate a pattern of absenteeism and lateness. Dr. Eisen refers to a pre-existing learning disability and hearing impairment complicating the applicant’s anxiety disorder. He recommends cognitive behavioural psychological therapy and pharmacotherapy to address the applicant’s serious emotional difficulties. He also recommends an assessment with a child psychiatrist.
11The respondent also provided report dated January 31, 2019, of Dr. Shrenik Parekh, psychiatrist in which the applicant advised she no longer attends psychotherapy with Ms. Price. Dr. Parekh diagnosed unrelated learning disability, separation anxiety and specific phobia and recommended cognitive behavioural therapy. The respondent submits that family physician, Dr. Tokarewicz has not provided medical evidence in support of the OCF-18 for tutoring.
12I find that the applicant has failed to provide sufficient independent evidence in support of the OCF-18 of Ms. Chrapko. The applicant’s pre-existing learning disability is not accident-related and her academic records indicate she is functioning well in the IEP at school. There is no evidence in support of an aggravation of the applicant’s pre-existing learning disability as a result of the accident. The reports of Ms. Sossi and Ms. Price pre-date the applicant’s involvement in the IEP. Despite the applicant’s emotional difficulties, her grades have improved within the IEP.
13Although, I accept that the applicant has suffered emotional difficulties as a result of the accident, she has not continued to engage in cognitive behavioural psychological counselling (“CBT”). The medical opinions are consistent that the applicant requires CBT to address her serious psychological issues which will improve her concentration and focus. I find that tutoring will not improve the applicant’s serious behavioural issues. The applicant has failed to establish that the OCF-18 for tutoring at Oxford Learning is reasonable and necessary as a result of the accident.
Interest
14Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on the OCF-18 in dispute for tutoring at Oxford Learning, no benefits are owing and interest does not apply.
ORDER
15The applicant is not entitled to the benefit in dispute, nor interest. The application is dismissed.
Released: June 27, 2024
Lisa Holland
Adjudicator