Wodzinski v. Aviva Insurance Canada, 2024 CanLII 59554

Licence Appeal Tribunal

Citation: Wodzinski v. Aviva Insurance Canada, 2024 ONLAT 22-006495/AABS - A

Licence Appeal Tribunal File Number: 22-006495/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:

Tammy Wodzinski

Applicant

and

Aviva Insurance Canada

Respondent

AMENDED DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Chris Beckett, Counsel

For the Respondent:

Geoffrey Keating Rajesan Rajendran, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Tammy Wodzinski, the applicant, has a derivative 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 applicant was denied the treatment in dispute by the respondent, Aviva Insurance Canada, 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 $3,067.84 for occupational therapy services, proposed by Rehab First in a treatment plan/OCF-18 (“plan”) dated June 1, 2020?

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 derivative 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 plan for occupational therapy services reasonable and necessary?

7I find there is no corroborating evidence in support of OCF-18 dated June 1, 2020 by occupational therapist, Nicole Zomer in the amount of $3,067.84 for occupational therapy services. The applicant relies on the OCF-18 report dated June 1, 2020 and progress report dated April 23, 2020 by Ms. Zomer, s.44 insurer examination (“ IE”) report dated August 18, 2020 by psychiatrist, Dr. Jay Sethi and various treatment notes. In the OCF-18, Ms. Zomer indicates the applicant suffers from cognitive difficulties and daytime fatigue as a result of the accident. Following over three years of occupational therapy, Ms. Zomer suggests that the applicant requires further occupational therapy to provide strategies for cognitive difficulties, work simplifications and assistive devices. Ms. Zomer further indicates the applicant continues to suffer from grief, decreased mood and anxiety as a result of her husband’s death, which interferes with her physical and cognitive abilities. Although, Dr. Sethi diagnosed mild depression and mild anxiety disorder, he found that the OCF-18 by Ms. Zomer is not required from a psychiatric perspective. The applicant argues that the report of Dr. Sethi should be given no weight, since he is not an occupational therapist.

8In response, the respondent scheduled a s.44 IE by psychiatrist, Dr. Jay Sethi who found that the applicant has mild stressors associated with childcare, housekeeping, finances and emotional support since the loss of her husband. Dr. Sethi found no evidence of major mental illness as a result of the accident. He concludes that the applicant has reached maximum psychiatric improvement. The respondent provided the treatment records of Dr. Tokarewicz and Rehab First which include the clinical notes of Ms. Zomer and progress reports of social worker, Valerie Price. The respondent argues that the applicant is not interested in pursuing further sessions with Ms. Zomer and her concerns are focused on school closures during COVID. The respondent submits that Dr. Tokarewicz has not provided medical evidence in support of continued occupational therapy and the OCF-18 does not provide an explanation whether or not treatment goals are being achieved.

9I find that the applicant has failed to provide any corroborating evidence from her doctors or other service providers in support of the OCF-18 of Ms. Zomer. In the progress report dated September 1, 2017, Ms. Price does not mention the need for further occupational therapy services. In addition, Dr. Sethi concludes that the applicant has reached maximum psychological improvement. There are no updated reports of cognitive dysfunction and fatigue by treating doctors. The applicant has failed to establish that the OCF-18 for occupational therapy services is reasonable and necessary as a result of the accident.

Interest

10Interest 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 occupational therapy services, no benefits are owing and interest does not apply.

ORDER

11The applicant is not entitled to the benefit in dispute, nor interest. The application is dismissed.