17-007475 v Aviva General Insurance Company, 2018 CanLII 112117

Date: 2018-08-01

Tribunal File Number: 17-007475/AABS

Case Name: 17-007475 v Aviva General Insurance Company

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:

Applicant

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES:

Paralegal for the applicant: Jeton Memeti

Counsel for the respondent: Thomas R. Hughes

Heard in writing on: May 22, 2018

OVERVIEW

1The applicant was injured in an automobile accident on September 28, 2016. He was 51 years old at the time. He sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied his request for benefits, and the applicant filed an application with the Licence Appeal Tribunal (“Tribunal”).

ISSUES

2According to the submissions before me, the issues that remain in dispute are as follows:

a. Is the applicant entitled to the cost of a psychological assessment in the amount of $2,200.00 recommended by Pilowsky Psychology Professional Corp. in an OCF-18 submitted to the respondent on December 23, 2016 and denied on January 17, 2017 (the “Pilowsky Assessment”)?

b. Is the applicant entitled to interest on any overdue payment of benefits?

c. Is the applicant entitled to a special award due to the respondent unreasonably withholding or delaying the payment of benefits pursuant to section 10 of R.R.O. 1990, Reg 664?

RESULT

3I find, on a balance of probabilities, that:

a. The applicant is not entitled to the cost of the Pilowsky Assessment.

b. The applicant is not entitled to interest.

c. The applicant is not entitled to a special award under section 10 of Reg 664.

REASONS

The applicant is not entitled to the cost of the Pilowsky Assessment

4Under Section 25 of the Schedule, the applicant bears the onus of satisfying the Tribunal, on a balance of probabilities, that the assessment in question is necessary and that the fees charged by the assessor are reasonable.

5The record before me shows a claim for the cost of the Pilowsky Assessment in the amount of $2,000 for the assessment and $200 for the preparation of the OCF form. The Schedule allows payment of $2,000 for an assessment and $200 for the preparation of an OCF form.

6However, I need to see a detailed breakdown, showing me how hours are spent, at what rate, and what other services are used. A breakdown, including dockets, would help demonstrate how the doctor arrived at a claim of $2,000 for the assessment and $200 for the preparation of the OCF form. I have not been provided with any such breakdown or detail in this case.

7Simply because the Schedule allows these amounts does not mean that a claimant is automatically entitled to those amounts. The claimant still needs to justify why those specific amounts are being claimed.

8I have not been provided with any detail in the evidence which would lead me to understand how $2,000 was arrived at for the assessment and how $200 was arrived at for the completion of the OCF form. Much like the situation before Adjudicator Neilson in 16-004031/AABS, I have no evidence of what Dr. Pilowsky’s hourly rate is, or the means of calculating her hourly rate. Without this information, I am unable to engage in the exercise of determining whether the fees charged for assessment and the form are reasonable and necessary.

9I have also reviewed the report that was produced by the Pilowsky Assessment. I find this report problematic because the conclusions in the report do not appear to be supported by the evidence that was collected.

10Specifically, Dr. Pilowsky has diagnosed the applicant with major depressive disorder, and posttraumatic stress disorder in her report. She does not, however, explain how she arrived at this diagnosis. According to the testing that she had performed, the applicant tested at a moderate level of depression and a severe level of anxiety. There is no analysis in the report: in particular, there is no cogent or supported explanation of how these specific test results translate into the diagnosis that was made at the end of the report.

11Accordingly, the Pilowsky Assessment does not appear to have produced a cogent, supported, and analytical report. Given these shortfalls in the analysis and the report of Dr. Pilowsky, I am not persuaded that the assessment itself was reasonable and necessary.

12Given the substantive shortfalls in the report produced by the assessment, as well as the lack of a breakdown allowing me to understand where the cost claims are coming from, I find that the cost claimed for the Pilowsky Assessment is not reasonable or necessary.

The applicant is not entitled to interest

13Given that the costs of the Pilowsky Assessment are not payable, it follows that interest on those costs is also not payable.

The applicant is not entitled to an award under section 10 of Regulation 664

14The applicant seeks an award under Section 10 of Regulation 664, claiming that the respondent had unreasonably withheld or delayed payment of benefits. I have already found that the costs of the Pilowsky Assessment are not payable. Therefore, they were not unreasonably denied or withheld.

15I note, however, that the issues in dispute between the parties were originally more numerous than the single issue of the Pilowsky Assessment. I have therefore reviewed both parties’ submissions and evidence in order to determine whether there are grounds for an award under section 10 of Reg 664 against the respondent with respect to other claims that were originally in issue in this application.

16For the reasons provided below, I am not satisfied, on a balance of probabilities, that an award under Section 10 of Reg 664 is appropriate in this case.

17A portion of the applicant’s submissions on this issue is a lengthy list of documents and attachments, without any explanation as to why these documents are relevant. Therefore, it is not clear to me why I am being asked to review these documents on behalf of the applicant. Presenting the documents in this manner is not persuasive.

18I have also been referred to the adjuster’s log notes. I have reviewed them, and am not satisfied that they contain evidence of conduct on the part of the respondent that is to be sanctioned under Section 10 of Reg 664. From the log notes and the other documentary evidence provided, I see that the adjuster (i) made notes of documents that were received by the respondent, and (ii) moved the file towards insurer assessments.

19In addition, the applicant points to delays and denials on the part of the respondent, and submits that because of these delays and denials, the respondent should pay an award under Section 10 of Reg 664. I am not satisfied, on the basis of the evidence before me, that the delays and denials referred to by the applicant amount to conduct that should be sanctioned by the Tribunal under Section 10 of Reg 664.

20At paragraph 37 of his submissions, the applicant also states that the denial was not based on medical evidence. He indicates that the fact scenario in this case is similar to the facts that were before Adjudicator Ferguson in 17-004357 v. Aviva General Insurance. In 17-004357, Adjudicator Ferguson had found that the denial before him was made without a medical reason.

21The applicant has not been specific in terms of which denial, or which benefit is being referred to in his argument. I have reviewed the denial letters in the evidence before me, and they appear to all be based on medical and IE evidence. Therefore, they are not similar to the denial that was before Adjudicator Ferguson in 17-004357. I am not persuaded that the respondent issued an unreasonable denial of the applicant’s claim for benefits.

22For these reasons, I find that the respondent is not liable to pay an award under Section 10 of Reg 664 to the applicant.

CONCLUSION

23For the reasons provided above, on a balance of probabilities, I find:

a. The applicant is not entitled to payment of the costs of the Pilowsky Assessment;

b. The applicant is not entitled to payment of interest on these costs; and

c. The applicant is not entitled to an award under Section 10 of Reg 664.