S.S. v. Aviva General Insurance, 2017 CanLII 62165

17-001183 v Aviva General Insurance

Date: 2017-08-22

Tribunal File Number: 17-001183/AABS

Case Name: 17-001183 v Aviva General 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:

S.S.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

Counsel for Appellant: Syed M. Raza

Counsel for Respondent: Nabila Majidzadeh

HEARD IN WRITING: June 6, 2017

REASONS FOR DECISION

OVERVIEW

1This is an application to the Licence Appeal Tribunal (the “Tribunal”) in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

Background

2S.S. (the “applicant”) was involved in an automobile accident on June 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O.Reg. 34/10 (the ''Schedule'').

3The applicant applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4A case settlement conference held on April 25, 2017 failed to fully resolve the issues disputed by the parties. Accordingly, a written hearing was ordered to be conducted in this matter, commencing June 6, 2017.

Issues

5The issues to be decided by the Tribunal are:

1. Is the applicant entitled to a medical benefit in the amount of $2000.00 for psychological services recommended by Dr. Oren Gozlan in a Treatment and Assessment Plan (OCF-18) dated February 1, 2016 and denied by the respondent on March 1, 2016?

2. Is the applicant entitled to a medical benefit in the amount of $3417.00 for physiotherapy services recommended by Springdale Physiotherapy Services in a Treatment and Assessment Plan (OCF-18) dated January 26, 2016 and denied by the respondent on April 4, 2016?

3. Is the applicant the applicant entitled to costs in this matter, pursuant to Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016), (“the Rules”)?

6The applicant also seeks costs in this matter, pursuant to Rule 19 of the Licence Appeals Tribunal Rules of Practice and Procedure, Version I (April 1, 2016), (“the Rules”).

Result

7I find that the applicant is not entitled to the medical benefits recommended in either of the above-noted OCF-18s.

8The applicant’s request for costs is denied.

Analysis

9Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.¹

Issue 1 – OCF 18 for Psychological Services

10To prove that his proposed psychological treatment plan is reasonable and necessary, the applicant relies heavily on an independent psychological assessment report by Dr. Oren Gozlan, psychologist, dated May 18, 2017.

11The applicant also relies on the disputed OCF 18 of February 1, 2016, provided by Dr. Gozlan. In this report, Dr. Gozlan’s findings are based on what he terms as an “in-person screening interview”; no reference is made to any other diagnostic tests. His notes indicate that his report is based on what the applicant has told him. His provisional diagnosis includes drive/passenger anxiety and adjustment disorder with depression and anxiety.

12Finally, the applicant cited a report by Dr. Igor Wilderman, a chronic pain specialist, dated December 2, 2016, which indicates that his injuries include depression. Because Dr. Wilderman is not a psychologist or psychiatrist, I give his observations less weight than the findings of qualified psychologists, such as Dr. Gozlan and Dr. Bacchiochi.

13In denying the applicant’s claim, the insurer relies on its insurer’s examination (IE) report by Dr. Jason Bacchiochi, psychologist, dated May 17, 2016. Dr. Bacchiochi conducted a structured clinical interview for DSM IV Axis I Disorders.

10The IE report states that the applicant did not present with mood symptoms causing clinically significant distress or impairment or that would warrant a DSM IV [i.e. a formal] diagnosis. Dr. Bacchiochi concludes that the disputed treatment plan was not reasonable and necessary.

11The applicant’s responses in the IE contradict the information he provided earlier to the OCF-18 psychologist, Dr. Gozlan. For example:

i. In the IE, the applicant denied anxiety or fear related to driving – directly at odds with the fifth goal of the OCF-18 “to return to driving and passenger comfort and safety”.

ii. In the IE, the applicant denied a persistently depressed mood or anhedonia (i.e. an inability to experience pleasure) in contrast to his self-reporting in the OCF-18 which stressed ongoing depression and inability to enjoy activities.

iii. In the IE, the applicant expressed uncertainty about his need for psychological treatment or counselling, which is inconsistent with the OCF-18 report that the applicant expressed interest in psychological assessment and treatment.

20Dr. Gozlan’s report of May 18 is also undermined by the applicant’s own statements to Dr. Bacchiocci. For example:

i. In the IE, the applicant denies any anxiety or fear related to driving and indicated that he drives regularly, at odds with his statement to Dr. Gozlan about experiencing anxiety when travelling in a vehicle and his attempts to limit driving whenever possible.

ii. In the IE, the applicant denies any post-accident traumatic symptoms, contradicting Dr. Gozlan’s report that he “is experiencing some traumatic symptoms, such as recurrent intrusive thoughts and flashbacks relating to the accident”

21The May 18, 2017 report by Dr. Gozlan is unpersuasive because of the noted, unexplained contradictions between it and the applicant’s self-reporting statements in the IE by Dr. Bacchiocci.

22The reliability of the IE, Dr. Gozlan’s independent report and the disputed OCF 18 depends heavily on frank and forthright self-reporting by the applicant. This is because the medical conclusions in each are based in large part on the applicant’s answers in clinical interviews.

23The applicant does not address the inconsistency of his statements in the different examinations. He offers no evidence or argument in his submissions that the respondent’s IE report is flawed in approach or methodology or non-credible in any respect.

24I find that the unexplained discrepancies in self-reporting by the applicant in the conflicting reports weaken the reliability of both of Dr. Gozlan’s reports and the probative value of the OCF-18. Accordingly, I find that the IE report by Dr. Bacchiochi was more persuasive in its findings than the disputed OCF-18 by Dr. Gozlan. I am confident in giving the IE report greater weight than either of Dr. Gozlan’s reports in determining this issue.

25As noted above, the onus is on the applicant to show that proposed treatment plans are reasonable and necessary. I find that unexplained and contradictory self-reporting by the applicant in clinical examinations undermine his case that he has met the onus.

Issue 2 – OCF 18 for Physiotherapy Services

26The applicant did not include the disputed OCF-18 for physiotherapy in either of its submissions for the hearing, and the document was not filed with its initial application.

27The omission occurred despite my direction to the applicant on June 5, 2017 to submit the omitted OCF-18.

28Without seeing the disputed OCF-18, I cannot assess whether it is reasonable and necessary; I cannot assess the validity of the respondent’s defence, nor can I determine that the onus of proof has been met by the applicant.

29As a result of the foregoing, I dismiss the application for payment of disputed physiotherapy services.

Issue 3 – Costs

30The applicant has asked for legal costs and disbursements in this matter, without explanation or argument.

31The awarding of costs is governed by the Rules, as cited above, specifically Rule 19, which sets out the basis and procedure for costs.

32I deny the applicant’s requests for costs because:

i. Rule 19.4 requires the requesting party to provide “[…] the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious or in bath faith.”

ii. The applicant’s request for costs is unsupported by any evidence or argument, and therefore fails to meet the requirements of Rule 19.4.

33The applicant further sought to have the following added as “costs”:

i. $1,356.00 for the cost of Dr. Gozlan’s psychological assessment report of May 18, 2017;

ii. $2,000.00 for the cost of a chiropractic assessment report by Dr. Dev Serahty, dated May 10, 2017.

iii. The applicant’s request for costs in para. 14 above is denied, because:

a. the costs of examinations are substantive issues, and may only be determined as such in the Tribunal’s appeal process;

b. the applicant’s request does not meet the above-noted requirements of Rule 19, which is the only basis for requesting costs in this matter.

24Because the respondent’s request does not meet the requirements of Rule 19, I find no basis for a cost award to the respondent.

CONCLUSION

25The applicant is not entitled to a medical benefit in the amount of $2,000.00 for psychological services, recommended by Dr. Oren Gozlan.

26The applicant is not entitled to a medical benefit in the amount of $3,417.00 for physiotherapy services, recommended by Springdale Physiotherapy Services.

ORDER

27The application is dismissed without costs.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635.