Licence Appeal Tribunal File Number: 25-000667/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:
[ES]
(A minor by their litigation guardian, [DS]
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Renee Reynolds, Counsel
For the Respondent:
Christina Chiu, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[ES], was involved in an automobile accident on May 6, 2019, 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 $705.00 for optical testing proposed by Dr. Malini Varshney, optometrist, in a treatment plan dated January 20, 2023?
ii. Is the applicant entitled to $2,420.50 for a speech and language assessment, proposed by Amanda Brown, speech-language pathologist, at S. L. Hunter Speechworks in a treatment plan dated March 2, 2023?
iii. Is the applicant entitled to $2,241.71 for a psychological assessment, proposed by Dr. Cherly Alyman, psychologist, in a treatment plan, dated November 28, 2024?
3I find upon review of the Case Conference Report and Order, issues listed are different than the issues listed in the applicant’s submissions and the attached treatment and assessment plans. Based on review of the actual treatment plans in dispute, I have amended the issues accordingly.
RESULT
4I find that the applicant is not entitled to the treatment plans for an optical assessment, speech and language assessment or a psychological assessment.
ANALYSIS
Entitlement to the treatment and assessment plans in dispute
5To determine entitlement to a treatment plan recommending an assessment, the insured must prove on a balance of probabilities, with supporting evidence, that there is a reasonable basis to investigate whether the insured person has sustained an impairment. While the applicant does not need to prove that the specific condition exists, he must prove with persuasive evidence that there is some accident condition that warrants investigation via the proposed assessment.
Parties’ Positions
6The applicant provides submissions as to why the three treatment plans in dispute are reasonable and necessary. He submits that the treatment plans in dispute relate to funding assessments, not treatment. He submits that the assessments are reasonable and necessary to determine whether there was objective evidence he had sustained a mild Traumatic Brain Injury (“mTBI”). He argues that it is a reasonable possibility that he sustained a concussion as a direct result of the accident. He argues that the differences of opinion of the various assessors as to whether he sustained a concussion should not disentitle him to assessments to determine whether he suffers from an optical, speech or psychological impairment. He further argues that the results of the denied assessments would determine whether he has concussion related impairments as such the three assessments are reasonable and necessary.
7The applicant submits that he was 16 months old at the time of the subject accident. He sustained facial injuries, bruising to his shoulder and right ear. He was diagnosed by the emergency room physician at Trill