Licence Appeal Tribunal
Date: 2017-08-10 Tribunal File Number: 16-001627/AABS Case Name: 16-001627 v Aviva Insurance
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:
R. R.
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES: Rajiv Kapoor: Counsel for the applicant Petros Yannakis: Counsel for Aviva
HEARD: Written Hearing: January 23, 2017
Overview
1The applicant was the seat-belted driver of a 2008 Hyundai Accent when she was struck by another vehicle on June 4, 2014. At the time of the accident the applicant was employed full-time as a flight attendant. She took time off between June 21 and the end of July 2014 to attend to the injuries suffered as a result of the accident.
2The applicant sought benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The applicant was denied payment for two sets of assistive devices and a psychological assessment by Aviva Insurance Company of Canada (“Aviva”)1. The applicant appeals to the Licence Appeal Tribunal for the payment of these benefits.
3Payment for the applicant’s treatment is not subject to the $3,500 payment limit. The main issue in this hearing is whether the treatment and assessments sought are reasonable and necessary expenses. The onus is on the applicant to prove that it is more likely than not that the treatment and assessments are reasonable and necessary.
Issue:
4I must determine the following issues:
- Is the applicant entitled to receive a medical benefit in the amount of $1,627.20 for assistive devices, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated November 9, 2015?
- Is the applicant entitled to receive a medical benefit in the amount of $1,819.30 for assistive devices, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated January 18, 2016?
- Is the applicant entitled to payments for the cost of an examination in the amount of $2,065.00 for a psychological assessment, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated June 25, 2015?
- Is the applicant entitled to interest on undue payments?
- Is the applicant entitled to costs under Rule 19.1?
- Is Aviva entitled to costs under Rule 19.1?
Result:
5The applicant is not entitled to payment for any assistive devices because she has not sufficiently proven that they are reasonable and necessary expenses.
6The applicant is entitled to payment for the psychological assessment. She is also entitled to interest on this payment in accordance with the Schedule.
7Neither party is entitled to costs.
Assistive Devices:
a) The first Treatment Plan for Assistive Devices
8On November 9, 2015, the applicant’s chiropractor, Dr. Justin Guy, submitted a Treatment Plan to Aviva requesting the following assistive devices:
- Cervical collar: $140
- Back support with rigid shell: $390
- Lumbosacral corset/belt: $485
- Brace: $425
9In Part 8 of the Treatment Plan, Dr. Guy provided the following explanation for how the assistive devices would help the applicant’s ability to function:
Due to the significance of the applicant’s injuries, she has extreme difficulty pushing, pulling, bending, sitting for a period of over 20 minutes, standing from the sitting position. Client finds it almost impossible to complete everyday tasks such as getting dressed and eating. Assistive devices are being recommended to help assist in the clients [sic] recovery.
10Aviva commissioned an independent chiropractic report in relation to this treatment plan. Dr. Kopansky-Giles conducted a chiropractic examination and provided a report dated November 25, 2015. As will be explained in the next section of the decision, the report’s findings only reinforce my decision. What is important for now is that Aviva denied payment based on Dr. Kopansky-Giles’ report.
b) The second Treatment Plan for assistive devices
11On January 18, 2016, Dr. Justin Guy submitted another Treatment Plan to Aviva requesting more assistive devices:
- Exercise equipment: $450
- Overdoor traction set: $235
- Digital EMS: $480
- Personal massager: $445
12In Part 8 of the Treatment Plan, Dr. Guy provided the same explanation for how the assistive devices would help the applicant’s ability to function:
Due to the significance of the applicant’s injuries, she has extreme difficulty pushing, pulling, bending, sitting for a period of over 20 minutes, standing from the sitting position. Client finds it almost impossible to complete everyday tasks such as getting dressed and eating. Assistive devices are being recommended to help assist in the clients [sic] recovery.
13Aviva commissioned Dr. Kopansky-Giles to conduct a paper review and produce a report in relation to the Treatment Plan. Dr. Kopansky-Giles found that the Treatment Plan was not reasonable or necessary. Aviva denied payment based on the report.
Analysis
14The applicant’s claim for each set of assistive devices is denied. The devices are not reasonable and necessary expenses. Dr. Guy related the necessity of each set of assistive devices to assisting the applicant with completing everyday tasks such as getting dressed and eating. However, during the applicant’s examination with Dr. Kopansky-Giles she reported being able to perform her child care, household chores, and working full-time. Furthermore, she reported feeling about 80% improved by the time of the examination. In the applicant’s Reply submissions, she denied that she is about 80% improved but did not deny that she reported this fact to Dr. Kopansky-Giles. Further she did not provide any evidence or explanation as to what may have changed since reporting she was 80% improved.
15The applicant notes her “lack of improvement” in her submissions not her evidence. Her submissions note that she continues to still experience pain to date. However, I do not see how the assistive devices will assist the applicant with completing everyday tasks when she has seemingly been able to complete them since November 2015.
16The applicant added in her written submissions that the assistive devices are needed to help with pain management; however, she did not provide any examples. According to the applicant, she suffers from chronic pain. Aviva does not accept this characterization. Even if I assume that the applicant suffers from chronic pain, I am unable to accept that the assistive devices will help manage the applicant’s pain. The reason is the onus in this hearing. In order to receive payment, the applicant has to prove that it is more likely than not that the assistive devices will help manage her pain. I struggle to accept this. At one end, I can see how some of the assistive devices sought might assist the applicant with managing her pain. I can only see so far though without explanation from the applicant. The applicant has not provided any evidence or submissions to explain how the assistive devices will actually help to manage her pain. I am unable to conclude that the assistive devices are a reasonable and necessary expense as a result.
17Dr. Kopansky-Giles’ two reports concluded and explained why the assistive devices are not a reasonable and necessary expense. The analysis in the reports reinforce my decision, which I have made based largely on the applicant’s evidence, including her self-reports to medical practitioners.
The psychological examination
18The applicant is entitled to payment for the psychological examination. It is reasonable and necessary that the applicant is given an opportunity to manage and mitigate her depression and anxiety issues. a psychological examination is needed to afford this opportunity.
19Aviva commissioned a psychological report from Dr. Amena Syed in relation to the request for payment of a psychological examination. Dr. Syed’s report, dated August 31, 2015, states that the applicant suffers from residual symptoms of anxiety and depressed mood but the “nature and severity are not considered to significantly interfere with her social, occupational or other important areas of her daily life.” The residual symptoms experienced within the applicant’s psychological condition were not enough for Dr. Syed to diagnose the applicant with a recognized psychological disorder. According to Dr. Syed, the applicant’s psychological issues are expected to resolve with the natural progression of time without treatment. As such, it is not reasonable or necessary for the applicant to receive a costly psychological assessment.
20Dr. Syed conducted a number of recognized psychological tests on the applicant. The applicant tested as “Mildly Impaired” on the Beck Anxiety Inventory and Post Traumatic Stress scales. She tested as “Moderately Impaired” on the Beck Depression Inventory. The applicant was not found to be exaggerating her psychological condition. Based on the test results, and on Dr. Syed’s conclusion that the applicant continues to suffer from residual symptoms of anxiety and depressed mood, I am satisfied that a psychological examination is reasonable and necessary. Dr. Syed expected in August 2015 that the applicant’s psychological issues would resolve with the natural progression of time. At the time of this hearing, in 2017, it appears that the psychological issues still have not resolved. It is reasonable and necessary that the applicant is given an opportunity to explore her depression and anxiety issues with a psychological examination.
21The applicant submitted a report by Joshua Pugen, a social worker. Mr. Pugen commented on the applicant’s psychological condition. I rely on Mr. Pugen’s report only insofar that it shows the applicant continues to suffer from psychological issues. That evidence, combined with Dr. Syed’s report, is sufficient for me to conclude that the psychological examination is reasonable and necessary.
Interest
22Given my decision, interest shall be paid in relation to the psychological examination in accordance with the Schedule.
Costs for the applicant
23I decline to order costs under Rule 19.1. The applicant seeks costs under Rule 19.1 of the LAT Rules because Aviva did not use the information provided by the applicant to adjust its file in the applicant’s favour through the course of the Tribunal’s proceeding. The three substantive issues in this hearing were difficult to decide. It was not unreasonable or a gesture of bad faith for Aviva to believe that the applicant was not entitled to payment for any of the Treatment Plans in dispute. Indeed, it turns out that the applicant was only entitled to payment for one of the three Treatment Plans in dispute. Moreover, there is no indication that Aviva acted frivolously or vexatiously in the proceeding.
Costs for Aviva
24I decline to order costs. Aviva seeks costs under Rule 19.1 but has failed to specifically identify any conduct from the applicant in the Tribunals proceeding that is unreasonable, frivolous, vexatious, or in bad faith. Aviva is an experienced party at the Tribunal. It should know that costs under Rule 19.1 will only be awarded for unreasonable, frivolous, vexatious or bad faith conduct that occurs during the Tribunal’s proceeding.
Conclusion:
25The applicant not entitled to payment for assistive devices or costs. The applicant is entitled to payment for the psychological assessment and corresponding interest. Aviva is not entitled to costs.
Released: August 10, 2017
Chris Sewrattan, Adjudicator