April 17, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
16-000946 v Aviva: IRBs; Medical Assessment; burden of proof on applicant to show assessment is reasonable and necessary; burden of proof on applicant to show IRBs are reasonable and required.
Date of Decision: February 27, 2017
Heard Before: Adjudicator Anna Truong
The applicant was involved in a car accident on November 24, 2014, and sought benefits pursuant to the SABs. The applicant applied for an IRB and a psychological assessment, but was denied by Aviva. The applicant disagreed with this decision and applied for dispute resolution services LAT – Automobile Accident Benefits Service. The parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
- Is the applicant entitled to an IRB in the amount of $175 per week from February 1, 2015 to March 23, 2015?
- Is the applicant entitled to the cost of a psychological assessment as outlined in the Treatment and Assessment Plan?
- Is the applicant entitled to interest for any overdue payment of benefits?
- Is either party entitled to costs of the proceeding?
- The applicant is not entitled to an IRB.
- The applicant is not entitled to the cost of a psychological assessment.
- The applicant is not entitled to any interest.
- Neither party is entitled to costs of the proceeding.
The applicant is being treated under the Minor Injury Guideline (“MIG”), which establishes a framework for the treatment of minor injuries. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.
The MIG determination was not added as an issue for this hearing. The MIG determination would only have to be decided, if the OCF-18 was found to be reasonable and necessary. As the Arbitrator did not find the OCF-18 reasonable and necessary, the MIG determination does not need to be decided.
1. Income Replacement Benefit
The applicant bears the burden of proving on a balance of probabilities that he is entitled to an IRB in the amount of $175 per week from February 1, 2015 to March 23, 2015. The test for entitlement for an IRB benefit is set out in section 5(1) of the Schedule. It provides that he is entitled to an IRB if, as a result of the accident he suffers a substantial inability to perform the essential tasks of his pre-accident employment as an articling student. In his Application for Accident Benefits Form (OCF-1), the applicant indicated that he was employed and working at the time of the accident. Under the “Income Replacement Determination”, the applicant indicated “N/A”.
Two Disability Certificates (OCF-3) both dated December 6, 2014 were completed. On one, under Part 6 Disability Tests and Information she marked “N/A” under the Income Replacement disability test, while on the other, she marked “No” indicating that the applicant was not substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident.
On March 6, 2015, the applicant gave a statement to Aviva outlining his job responsibilities including details of his termination due to the fact that ‘he refused to lift an appeal book and compendium and drive it down to the Court of Appeal.’ He was actively seeking employment “in his line of work” at the time the statement was given, and he was still driving at the time the statement was given.
The Arbitrator reviewed the totality of the evidence submitted, including the work records, statements by the applicant, and the medical records including a previous diagnosis of panic attacks and anxiety in 2011 from University related difficulties. The Arbitrator determined that the applicant did not make any arguments as to why the psychological assessment is reasonable and necessary.
On this basis, the Arbitrator determined that the applicant has not proven on a balance of probabilities that the psychological assessment is reasonable and necessary, and therefore, the psychological assessment is not payable.