Licence Appeal Tribunal File Number: 24-013680/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:
Sean L McGinnis
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gary Marshall
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
James Brown, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Sean McGinnis, the applicant, was involved in an automobile accident on December 17, 2022, 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 $2,200.00 for a psychological assessment, proposed by ALCAT Assessments Inc. in a treatment plan/OCF-18 (“plan”) submitted March 21, 2024?
ii. Is the applicant entitled to $1,391.82 for other assistive devices, proposed by ALCAT Assessments Inc. in a plan submitted July 12, 2024?
iii. Is the applicant entitled to $3,192.83 for occupational therapy services, proposed by ALCAT Assessments Inc. in a plan submitted July 12, 2024?
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?
RESULT
3The applicant is not entitled to $2,200.00 for a psychological assessment, proposed by ALCAT Assessments Inc. in a plan submitted March 21, 2024.
4The applicant is not entitled to $1,391.82 for other assistive devices, proposed by ALCAT Assessments Inc. in a plan submitted July 12, 2024.
5The applicant is entitled to $3,192.83 for occupational therapy services, proposed by ALCAT Assessments Inc. in a plan submitted July 12, 2024.
6The respondent is not liable to pay an award.
7The applicant is entitled to interest on the treatment plans for occupational therapy services dated July 12, 2024.
ANALYSIS
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by ALCAT Assessments Inc, in a plan submitted March 21, 2024?
8I find that the applicant is not entitled to the psychological assessment.
9To 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 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 purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
11The applicant argues that an IE Assessment of Dr. Christopher Cooper, Psychologist, should be inadmissible as the applicant was not given proper notice to attend the IE examinations. The applicant further argues that the Tribunal has, in multiple decisions, acknowledged that a reasonable possibility of a condition – particularly one that remains undiagnosed – can justify the need for further investigation.
12The respondent argues that the first disputed OCF-18 was prepared on March 5, 2024, by Valda Lopo, Psychologist, and proposed a psychological assessment at a cost of $2,200.00. However, there was no persuasive evidence of psychological complaints at that time. The respondent also refers to the clinical notes and records of the applicant’s family physician, Dr. Khanna, who did not record any psychological complaints. The respondent further argues that the applicant has conceded that he was provided with two notices for s. 44 assessments to address the OCF-18 and has raised no issue with their validity. Instead, the applicant argues that Aviva’s failure to specifically reference the OCF-18 when it re-scheduled his missed assessment date with Dr. Cooper and paired it with the attendant care assessment should render the resulting report addressing the OCF-18 inadmissible.
13I am persuaded by the respondent’s argument that the applicant’s participation in the IE waives any issues of noncompliance with the notice, therefore I find the resulting report of Dr. Cooper to be admissible.