Licence Appeal Tribunal File Number: 25-000635/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:
Rita MacMillan
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: John Mazzilli
APPEARANCES:
For the Applicant: Gordon W Harris, Counsel
For the Respondent: Marcin Panasewicz, Counsel
HEARD: By way of written submission
OVERVIEW
1Rita MacMillan, (“the applicant”), was involved in an automobile accident on October 17, 2017, 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 Aviva General Insurance Company (“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 $1,200.00 for optometric services, proposed by Amanda Sim in a treatment plan/OCF-18 (“plan”) dated January 9, 2023?
ii. Is the applicant entitled to $6,716.00 for optometric services, proposed by Amanda Sim in a treatment plan dated February 9, 2023?
iii. Is the applicant entitled to $2,836.00 for other goods and services (psychological assessment), proposed by Dr. S. Patel in a treatment plan dated February 6, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
WITHDRAWN ISSUES
3In her written submissions the applicant withdrew issues i. and ii. as listed above.
RESULT
4The applicant is not entitled to $2,836.00 for a psychological assessment.
5The applicant is not entitled to an award.
6Interest is not owing.
7The application is dismissed.
ANALYSIS
The applicant has failed to demonstrate that a psychological assessment is reasonable and necessary.
8I find on a balance of probabilities that the applicant is not entitled to a psychological assessment in the amount of $2,836.00 because it is not reasonable or necessary.
9To receive payment for a treatment and assessment plan under sections 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 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.
10The applicant submits that her pre-accident medical history is extensive and significant. In 2005 she suffered a workplace accident that disabled her which led to chronic myofascial pain in her head, neck, back, legs and migraines. These impairments were exacerbated from a motor vehicle accident (“MVA”) in 2010 and another in 2015 and by multiple “negligent battery” events, where others have aggravated her conditions. She submits that post 2015 MVA she developed increased sensitivity to smell, light, sound, and significant cognitive changes and that further aggravations were developed following two occupiers’ liability events in 2018 and 2019.
11The applicant submits that the current claim arises from being a seat belted passenger and being thrown back against her chair when the driver of the vehicle slammed on the brakes, causing her to suffer from whiplash and increased her left sided chronic pain. She submits that the reasonableness and necessity for a s.25 assessment is a low bar and the easiest test to meet. She argues that the respondent denied the assessment based on its s.44 report, however this report was requested to provide an opinion on non-earner benefits (“NEB”) and not the assessment in dispute. The applicant relies on the OCF-18 dated February 6, 2023, completed by Dr. Sujay Patel, physician, the CNRs of St. Michael’s Hospital, the CNRs of Dr. Tepper, the applicant’s family physician and the occupational therapy report dated January 9, 2017, completed by Tracy Milner, occupational therapist.
12The respondent argues that there is no evidence that a collision occurred and that the applicant has not demonstrated any clear change in her wellbeing from her pre-accident period to the post accident period and that there is no clear connection to this accident which aligns with many other incidents that have caused her more significant injuries. The respondent relies on the report of Dr. Shahmalak, psychiatrist dated March 21, 2022, that opines that the applicant does not meet the causation test under the American Medical Association Guides (“AMA”) and that the applicant has not developed any psychological condition as a result of the subject incident.
13The respondent argues that the applicant did not submit a claim form for the subject accident until May 28, 2019, over 19 months post accident, which is also 6 days after the applicant and the respondent entered a full and final settlement related to her 2015 MVA. The respondent further relies on an examination under oath (“EUO”) where the applicant informs that her friend was driving out of a parking lot and before she reached the cars she braked suddenly, and the applicant pitched forward and back into the seat.
14The respondent further relies on a voluntary statement from the driver of the vehicle Ms. DeBeaupre, who did not recall any incident involving sudden braking but rather Ms. DeBeaupre noted that the applicant complained loudly about hitting bumps in the roadway. The respondent further relies on the CNRs of St. Michael’s Hospital, The CNRs of the applicant’s family physician Dr. Tepper, a psychological assessment report of Dr. Rockman dated February 12, 2016, psychological treatment progress report by Dr. Rockman dated July 14, 2016, November 29, 2016, and a psychological treatment discharge report by Dr. Rockman dated April 19, 2017.
15I find that a psychological assessment is not reasonable or necessary because the contemporaneous corroborating evidence shows that applicant’s psychological injuries are notably pre-existing, ongoing, and unresolved at the time of the accident. In addition. I cannot, on balance conclude or link the accident to the exacerbation of her pre-accident presentation, nor am I persuaded that the applicant suffered new psychological injuries from the subject accident that warrant a psychological assessment to be reasonable and necessary.
16The applicant attended St. Michaels hospital on October 22, 2017, five days following the accident with complaints of right leg and pelvis pain. Imaging taken reveled degenerative changes with no fractures or dislocations, the applicant was discharged. On October 27, she informed her family physician by telephone appointment that she feels whiplash symptomology and a CNR dated November 8, 2017, from Dr. Tepper shows she requested her accident-related injuries such as pain in the right hip and knee are worse with standing and requests her symptoms be documented. It is important to note that pre-and post accident the applicant was receiving regularly scheduled occipital nerve block injections for widespread musculoskeletal pain, and the CNRs of St. Michaels Hospital show that there is no change in diagnosis or treatment pre and post accident which support a finding that her pre and post accident presentation do not differ.
17Further complicating the applicant’s position are the CNRs of Dr. Tepper which show a multitude of unrelated injury complaints by the applicant in the period following the accident to the date the psychological assessment plan was submitted, which I note is approximately five and half year’s post accident. The CNRs of Dr. Tepper in this period prove difficult for me to draw a linkage to the subject accident nor do they support a finding that her pre-existing condition supports the assessment to be reasonable and necessary.
18For example, on July 8, 2018, the applicant reported a fall that occurred two days prior at the library while trying to sit in a wheelchair that rolled back causing injury to her upper back, left side of her neck, left mid torso, left side of foot and ankle, inside upper right thigh, right shoulder and right neck. On November 16, 2018, she reported tripping while walking causing her foot to get caught in a hole in the curb, reportedly causing her to hit her face which initially resulted in some word finding problems. On April 17, 2019, she alleged being physically assaulted by a woman in the YMCA sauna, she alleges the woman grabbed her left leg and twisted it causing instant pain in her lower back. On June 13, 2022, she alleges a physiatrist caused injury to her left arm and right foot at a medical appointment. Dr. Tepper’s CNRs shows that the applicant self reported to Dr. Tepper that she wrote her lawyers immediately and wrote things down, she alleges the physiatrist was a sadist, while noting that she is continuing with Pilates and ballet.
19Finally, the evidence shows that the applicant was being treated for psychological injuries by Dr. Rockman in relation to psychological injuries from 2015 and this treatment was voluntarily terminated in December 2017, approximately two months post subject accident. In a report dated December 15, 2017, Dr. Rockman informs that “in light of Ms. MacMillan’s history of adverse experiences and due to the chronic nature of her struggles, which include difficulty establishing trust and therefore fully engaging in treatment, further treatment would probably not lead to significant improvement at this time and it was agreed upon with Ms. MacMillan to terminate her treatment, however should Ms. MacMillan be interested in resuming treatment with us or elsewhere in the future, a new treatment plan may be submitted”.
20The onus is on the applicant to prove that a psychological assessment is reasonable and necessary, and the applicant’s psychiatric conditions are longstanding and have attempted to be treated. Given that treatment options are available by Dr. Rockman and have not resumed by decision of the applicant, coupled with the lack of corroborating evidence supporting the possibility of a new psychological injury that can be linked to the subject accident, I find on a balance of probabilities that it is unlikely that a psychological assessment requested approximately five and half years post accident is reasonable and necessary.
21Accordingly, I find on a balance of probabilities that the applicant is not entitled to a psychological assessment in the amount of $2,836.00 because it is not reasonable and necessary.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
Award
23I find that the applicant is not entitled to an award.
24The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
25The applicant submits that the respondent demonstrated a disregard for the totality of her pre-existing impairments as well as an overall failure to properly adjust the claim. She argues that the respondent acted unreasonable by withholding the assessment, which has been excessive, imprudent, stubborn, inflexible, unyielding, and immoderate behavior.
26Having found that the respondent did not withhold or delay any benefits from the applicant, it follows that the applicant is not entitled to an award.
ORDER
27It is ordered that:
i. The applicant is not entitled to $2,836.00 for a psychological assessment.
ii. The applicant is not entitled to an award.
iii. Interest is not owing.
iv. The application is dismissed.
Released: May 13, 2026
John Mazzilli
Adjudicator