Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-003440/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:
Annette Yuen Applicant
and
Aviva General Insurance Company Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Yann Grand-Clement, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Annette Yuen, the applicant, was involved in an automobile accident on December 18, 2018, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $3,051.00 for OT neurocognitive assessment, submitted on October 9, 2020, and denied on October 16, 2020?
ii. Is the applicant entitled to $2,773.07 for physiotherapy services proposed by Prime Plus Heath Centre in a treatment plan (OCF-18) dated July 28, 2020, and denied on October 26, 2020?
iii. Is the applicant entitled to $3,051.00 for chronic pain assessment submitted on March 19, 2020, and denied on October 26, 2020?
iv. Is the applicant entitled to $2,355.35 for psychological services proposed by Prime Plus Health Centre in a treatment plan (OCF-18) dated May 7, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to issues i, ii and iii above which are "statute barred" due to the two-year limitation period in s. 56 of the "Schedule."
4The applicant is not entitled to $2,355.35 for psychological services.
5The applicant is not entitled to interest.
The applicant is not entitled to issues i, ii and iii above which are "statute barred" due to the two-year limitation period in s. 56 of the "Schedule".
6An application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer's refusal to pay the amount claimed. To trigger the running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-Operators Gen. Ins. Co. 2002, SCC 30, the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person's rights to dispute the denial; and the relevant time limits that govern that process.
7The treatment plans in issues i, ii, and iii were denied on October 16, 2020 (i) and October 26, 2020 (ii and iii). The applicant filed her LAT Application on March 27, 2023, past the two-year limitation period.
8The respondent submits that the applicant did not initiate issues i, ii and iii, are statute barred, and those issues should be statute barred from the application.
9The Supreme Court of Canada, Smith v. Co-operators General Insurance Company. In Smith v. Co-Operators Gen. Ins. Co. 2002, SCC 30, that in this case there is proper denial of benefits from the insurer, straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person's rights to dispute the denial; and the relevant time limits that govern that process.
10The applicant expressed in her submissions that the respondent must be meaningful to allow the applicant to challenge the decision. The applicant submitted a divisional court case of Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, that lays out that the insurer must make a clear explanation of the denial, and more than mere boilerplate statements do not constitute meaning and accurate reasons.
11I find in the insurer's letters to the applicant on issue 1, an explanation of benefits dated January 20, 2021, there is a clear and unequivocal denial of the treatment plan. On issue 2, an explanation of benefits dated October 26, 2020, there is a clear and unequivocal denial of the treatment plan and on issue 3, the same clear denial dated April 24, 2020, from the insurer to the applicant. The applicant has two years to file the LAT application. The insurer's letters have clear language that states to the applicant clearly on the limitation issue and it explains the options to the applicant going forward. In Smith v. Co-Operators Gen. Ins. Co. 2002, SCC 30, outlines the criteria for a clear and unequivocal denial: the reasons for the denial must be straightforward and in clear language. It must also provide information about the different stages in the dispute resolution process which an "unsophisticated person" can understand and include information about the relevant time limits.
12The respondent submits that the applicant didn't initiate their applications before the LAT re: treatment plans in issues i, ii, and iii within the 2-year period prescribed by s.56 of the Schedule, and therefore they are statute barred from proceeding with their applications re these treatment plans.
13I find that issues, i, ii and iii are statute barred from this proceeding because the applicant didn't initiate their applications within the two-year period. Due to my findings on the limitation periods, there is no need to determine if these three treatment plans are reasonable and necessary.
The applicant is not entitled to $2,355.35 for psychological services proposed by Prime Plus Health Centre in a treatment plan (OCF-18) dated May 7, 2021.
14I find that the applicant is not entitled to the above treatment plan.
15To 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 because 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.
16The applicant submits that since the accident she consistently reported ongoing psychological impairments to her family doctor, psychologist, and the Insurers' assessor. Dr. Lau, family physician, diagnosed the applicant with disturbed sleep with nightmares, persistent driving anxiety, and avoidance behaviour, caused by the accident. Dr. Ming Che Yeh, psychologist s. 25 assessor, also diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and vehicular phobia and concluded that the applicant will benefit from psychological counselling. Furthermore Dr. Nikkhou, the IE psychologist, diagnosed the applicant with adjustment disorder, specified trauma, and stressor-related disorder, caused by the accident. Dr. Nikkhou also concluded that the applicant continues to suffer from anxiety symptoms, memory, and concentration issues, driving anxiety and nervousness, and overall sense of heightened vulnerability and accident recurrence.
17The respondent submits that the applicant has failed to show that the proposed psychological treatment is reasonable and necessary. The respondent states the applicant fails to cite records from her family doctor showing an accident-related psychological impairment. Although Dr. Nikkhou did diagnose the applicant with a psychological impairment, the assessor stated that said impairment was only partially accident related. Further, Dr. Godwin Lau, assessor, in a subsequent s.44 psychological assessment dated July 6, 2021, found that the applicant was not experiencing a psychological impairment. The applicant relies on the psychological assessment report of Dr. Ming Che Yeh, psychologist. The assessment occurred on May 13, 2019, two years prior to the treatment plan at issue being submitted. It did not involve a review of the applicant's medical records.
18In contrast, the respondent suggests that s.44 assessor, Dr. Godwin Lau's report did include a review of the applicant's medical records and specifically dealt with the treatment plan at issue, which was found to not be reasonable and necessary as the applicant did not then suffer from an accident-related impairment. I find Dr. Godwin Lau's report more persuasive because of the applicant's psychological state at the time the treatment plan at issue was submitted and should be given more weigh than Dr. Ming Che Yeh's. The conclusions in Dr. Godwin Lau's report are in line with the applicant's family doctor's notes which did not show an accident-related psychological impairment at the time the treatment plan was submitted.
19I find also that Dr. Godwin Lau's report is a more accurate representation of the applicant's psychological state at the time the treatment plan was issued. The conclusions in Dr. Godwin Lau's report are in line with the applicant's family doctor's notes which did not show an accident-related psychological impairment at the time the treatment plan was submitted.
20For the above reasons, and on a balance of probabilities, I find that the treatment plan is not reasonable and necessary.
21No interest is awarded because none of the treatment plans are payable.
ORDER
22In the totality of the evidence, I find:
i. i, ii and iii in the issues above are statute barred under s. 56 of the Schedule.
ii. The applicant is not entitled to $2,355.35 for psychological services.
iii. No interest.
iv. The application is dismissed.
Released: February 19, 2025
Roderick Walker Adjudicator