17-001178 v Aviva General Insurance, 2017 CanLII 62170

Licence Appeal Tribunal

Date: 2017-08-18 Tribunal File Number: 17-001178/AABS Case Name: 17-001178 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:

17-001178 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

1[ ] (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 (the ''Schedule'').

2The applicant applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) on March 1, 2017.

3A 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

4Is 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 April 19, 2016 and denied by the respondent on April 28, 2016?

5Is 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”).

Result

6I find that the applicant is not entitled to the medical benefits recommended in the above-noted OCF-18.

7The applicant’s request for costs is denied.

Analysis

8Section 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

9In her submissions, the applicant relies heavily on an independent psychological assessment report by Dr. Oren Gozlan, dated May 18, 2016, to show that she has sustained psychological impairments arising from the accident that require treatment.

10The applicant also relies on the disputed OCF-18 by Dr. Gozlan, which I read, but her submission does not discuss its details.

11Finally, the applicant also cited a report by Dr. Igor Wilderman, a chronic pain specialist, dated December 2, 2016, which indicates that her injuries include depression. Because Dr. Wilderman is not a psychologist or psychiatrist, I find that his observation is outweighed by the findings of Dr. Lee, a qualified psychologist.

12The respondent relies on the insurer’s examination (IE) report by Dr. John Lee, dated June 7, 2016, which concludes that the disputed OCF-18 was neither reasonable nor necessary. Dr. Lee reports that the applicant did not suffer from any psychological impairment that reaches clinical proportions or that result in a DSM IV diagnosis or that require formal psychological services.

13Both the IE and the two reports by Dr. Gozlan depend heavily on forthright self-reporting by the applicant, because conclusions are drawn, in large part, from the applicant’s answers (or “self-reporting”) in various standardized interview and question/answer tests.

14In the IE, the applicant’s statements in a direct interview contradicted or were inconsistent with information provided to the OCF-18 physician. For example:

i. The IE report states that the applicant “does not feel that she requires any psychological intervention” and “remains a motivated person” – inconsistent with the large number of significant psychological issues reported in the OCF-18.

ii. In the IE, the applicant reported that she has no anxiety as a passenger in a vehicle – which I find inconsistent with the OCF-18 report of panic attacks and hyper-vigilance.

iii. In the IE, the applicant reported no intrusive thoughts or flashbacks of her accident – contradicting her report of flashbacks in the OCF-18.

15Dr. Gozlan’s May 18, 2017 report is also undermined by the applicant’s own statements to Dr. Lee, during the IE. For example:

i. In the IE, the applicant reported that she has no anxiety as a passenger in a vehicle – which contradicts Dr. Gozlan’s report that the applicant “experiences anxiety when travelling in a vehicle […] and is ‘too scared’ to take her road test.”

ii. In the IE, the applicant reported no intrusive thoughts or flashbacks of her accident – contradicting her report to Dr. Gozlan of “recurrent intrusive thoughts and flashbacks relating to the accident” in the OCF-18.

16The applicant makes no explanation for the discrepancies in self-reporting in the different examinations. She offers no evidence or argument that the respondent’s IE report is flawed in approach or methodology or non-credible in any respect. Accordingly, I am confident in giving the IE report substantial weight in determining this issue.

17I find that the unexplained discrepancies in self-reporting by the applicant in the conflicting reports weakens the reliability of Dr. Gozlan’s reports, and undermines the probative value of the disputed OCF-18.

18I find that unexplained and contradictory self-reporting by the applicant in clinical examinations undermine her case that she has met the required onus of proof.

Costs

19The applicant has asked for legal costs and disbursements in this matter, without explanation or argument. I deny the applicant’s requests for costs.

20Rule 19 sets out the basis and procedure for a request for costs. 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.” The applicant’s request for costs in para. 11 is unsupported by any evidence or argument, and therefore fails to meet the requirements of Rule 19.4.

21The applicant further sought to have the following added as costs:

i. $1,356.00 for the cost of Dr. Gozlan’s independent psychological assessment report, dated May 18, 2017 and cited in evidence;

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

22The applicant’s request for costs for both the psychological and the chiropractic assessments is denied, because:

i. The costs of examinations are substantive issues, and may only be determined as such in any appeal process.

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

23The applicant’s cost request does not meet the requirements of Rule 19; there is therefore no basis for a cost award to the respondent.

Summary of Findings

24The applicant is not entitled to a medical benefit in the amount of $2000.00 for psychological services.

25The application is dismissed without costs.

Released: August 18, 2017

Christopher A. Ferguson, Adjudicator

Footnotes

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