Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-008598/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:
Jaleesa Bell
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Esan Ince-Mercer, Counsel
For the Respondent: Christopher Lupis, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jaleesa Bell (“the Applicant”) was involved in an automobile accident on August 26, 2021, and sought benefits from Aviva General Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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.
ISSES
3The issues in dispute are:
i. Is the Applicant entitled to a medical benefit in the amount of $3,795.50 for chiropractic treatment proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”), dated October 15, 2021?
ii. Is the Applicant entitled to a medical benefit in the amount of $4,033.14, less $2,611.40 approved by the Respondent, for psychological treatment proposed by Complete Rehab Centre in a plan dated November 1, 2022?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant is not entitled to the benefits claimed, nor interest.
5The application is dismissed.
BACKGROUND
6The Applicant was stuck by a vehicle while attempting to cross an urban street as a pedestrian. She sustained no fractures as a result of the accident but sustained multiple sprain and strain injuries throughout her body.
7The Applicant was initially subject to the Minor Injury Guideline (“the MIG”) because she sustained a predominantly minor injury, as defined in section 3 of the Schedule. However, the Applicant developed psychological injuries following and as result of the accident and was no longer subject to the MIG and the $3,500.00 funding limit for a minor injury.
8At issue is the Applicant’s entitlement to a chiropractic plan that was submitted prior to engaging in treatment pursuant to the MIG, as well as her entitlement to the unapproved balance of a psychological treatment plan, and interest.
ANALYSIS
9The onus is on the Applicant to demonstrate that the benefits claimed are reasonable and necessary as a result of the accident.
$3,795,50 for a chiropractic treatment plan, dated October 15, 2021
10I find that this plan was refused pursuant to section 38(5) of the Schedule and the refusal is not subject to review, pursuant to section 38(6) of the Schedule.
11This plan was submitted on October 26, 2021. It was the first plan submitted on the Applicant’s behalf. The injuries listed in the plan are predominantly sprain and strain injuries, which fall in the minor injury definition, as outlined in section 3 of the Schedule.
12The Respondent replied to this plan on November 8, 2021, via email. The response advised the Applicant that treatment was pre-approved under the MIG, up to $2,200.00. The letter stated that it received no documents to help determine if the Applicant was injured in the accident and if the injuries fall outside of the MIG or if she has a pre-existing medical condition which would impair her recovery.
13The next day, on November 9, 2021, the Applicant submitted a treatment confirmation form pursuant to the MIG, dated November 5, 2021. This entitled the Applicant to treatment up to $2,200.00, which she consumed. The Applicant submitted another plan, dated January 7, 2022, for the $1,300.00 remaining under the MIG funding limit, which the Respondent approved, and the Applicant consumed.
14The Applicant submits that continued treatment is reasonable and necessary for pain reduction and increasing strength, and that she has not reached maximal recovery, warranting additional treatment. The Respondent submits that the plan should not be in dispute because it was subject to a settlement related to a prior Tribunal application. It further submits that the plan is not reasonable and necessary as the Applicant has unused chiropractic treatment that was approved after this plan was submitted and withdrawn.
15I find that the plan, dated October 15, 2021, was denied pursuant to section 38(5) of the Schedule and is not subject to review, pursuant to section 38(6). Section 38(5) provides that the Respondent may refuse to accept a treatment plan that proposes goods and services outside of the MIG when an insured is entitled to goods and services within the MIG. Here, the Respondent refused to accept the treatment and assessment plan at a time when the Applicant was entitled to pre-approved treatment pursuant to the MIG. It clearly advised the Applicant to submit a treatment confirmation form, pursuant to the MIG, and the Applicant did so and incurred the goods and services provided pursuant to the MIG.
16Section 38(6) provides that such a refusal under section 38(5) is not subject to review. Thus, I see no reason to interfere with this denial.