17-004357 v Aviva General Insurance, 2018 CanLII 13152

Date: 2018-01-31

Tribunal File Number: 17-004357/AABS

Case Name: 17-004357 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:

Applicant

Applicant

and

Aviva General Insurance

Respondent

AMENDED DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Michael Wentzel, Paralegal

For the Respondent: Samantha Mason , Counsel

HEARD in Writing on December 19, 2017

OVERVIEW

1[The applicant] (“the applicant”) was involved in an automobile accident on January 4, 2016 (“the accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Is the applicant entitled to the cost of examination in the amount of $2,520.00 for psychological assessment by Pilowsky Psychology Professional Corp., submitted July 12, 2016, and denied by the respondent on August 25, 2016?

2. Is the applicant entitled to a medical benefit in the amount of $4,605.48 for psychological services recommended by Pilowsky Psychology Professional Corp., submitted December 2, 2016, and denied by the respondent on January 5, 2017?

3. Is the applicant entitled to a medical benefit in the amount of $3,284.96 for physiotherapy recommended by Alpha Physiotherapy & Rehab Centre, submitted April 4, 2017, and denied by the respondent on April 27, 2017?

4. Is the applicant entitled to a medical benefit in the amount of $3,284.96 for physiotherapy recommended by Alpha Physiotherapy & Rehab Centre submitted, August 25, 2016, and denied by the respondent on September 28, 2016?

5. Is the respondent liable to pay an award under s.10 of Regulation 664, Automobile Insurance² (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

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

FINDINGS

4The respondent is liable to pay for the disputed psychological assessment plan, with interest. The appeal on issue 1 is allowed.

5I find that the applicant has not proven her entitlement to the disputed benefits for psychological treatment. The appeal on issue 2 is denied.

6I find that the applicant has not proven her entitlement to the disputed benefits for physiotherapy treatment. The appeal on issues 3 and 4 is denied.

7The applicant’s request for an award is without merit and is dismissed.

8The respondent must pay interest on the overdue payment for the psychological assessment plan.

REASONS

Is the respondent liable to pay the claimed physiotherapy treatment and psychological assessment benefits because it failed to comply with notice of denial/explanation of benefits requirements?

9Under s. 38(8) of the Schedule, the insurer must provide the insured person a notice of what goods, services, assessments and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations—or the cost of them—not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan.

10Under s. 38(11) of the Schedule, if the insurer fails to give a notice in accordance with s. 38(8), then:

i. it is precluded from taking the position that the applicant’s impairments are covered by the Minor Injury Guideline (“MIG”); and

ii. it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11^th business day after the insurer received the application, and ending on the day the insurer gives the notice required by s. 38(8).

11The insurer has conceded that its notices of denial on both disputed physiotherapy treatment plans did not comply with the Schedule and it has acknowledged its obligation to pay any costs incurred by the applicant under the terms prescribed by s.38(11). For the same reason, it has removed the applicant from the MIG. Accordingly, I will determine whether the physiotherapy treatment plans are reasonable and necessary for the purposes of deciding the applicant’s entitlement to the remaining amounts of the disputed benefits.

12The applicant claims that she is entitled to payment of the disputed psychological assessment plan because the respondent failed to provide her with an adequate denial within the timelines set out in s.38(8). The respondent takes exactly the opposite view.

13It is undisputed that the applicant underwent the disputed psychological assessment and incurred its costs on December 2, 2016, well after the respondent issued her an explanation of benefits (“EOB”) dated September 12, 2016 that included a denial and a request to attend an insurer examination.

14The issue is whether the EOB of September 12 complied with s.38(8) in terms of its content.

15The only reason given by the respondent for refusing to pay for the assessment noted in the EOB of September 12, 2016 is “Quite a bit of time has passed since the motor vehicle accident and you have received quite a bit of treatment for your injuries.”

16I find that the denial notice or EOB of September 12, 2016 failed to meet the prescribed content requirements of s.38(8) because it failed to provide medical reasons for the insurer’s refusal to pay for a psychological assessment. My reasons are:

i. The EOB’s stated reason for denial is simply far too vague to constitute a valid “medical reason” for denial;

ii. The EOB’s stated reason for denial implicitly refers to psychological treatment that the applicant never received. A reason must be factually correct to be compliant with the Schedule;

iii. There is nothing in the Schedule or in any evidence submitted to me to suggest that simply notifying an applicant that she is required to attend an insurer examination (“IE”) constitutes a “medical reason” or any other reason for denial as required by s.38(8); and,

iv. I was not directed to any legal basis for the respondent’s position that it can effectively suspend a determination of entitlement, without an express medical reason, “pending the outcome” of an IE.

17I find that the respondent failed to deliver an adequate and compliant EOB to the applicant before she incurred the cost of the psychological assessment. I find that by operation of s.38(11)2 of the Schedule, the respondent is liable to pay the cost of the benefit set out in paragraph 3 above as issue 1.

Is the respondent liable to pay the claimed psychological treatment benefit because it failed to comply with notice of denial/explanation of benefits requirements?

18The applicant contends that the respondent’s failure to provide a denial notice to the psychological treatment plan within the time limits prescribed by s.38(8) of the Schedule entitled her to be paid the claimed benefit.

19The applicant’s contention is dismissed because s.38(11)2 of the Schedule clearly prescribes that a benefit is only payable on the basis of non-compliance with s.38(8) if the services described in the treatment plan are provided before the respondent issues its denial. The applicant acknowledges that this did not happen. The cost has not been incurred and the respondent has issued a denial based on an insurer’s examination (“IE”) report that complies with the prescribed content requirements for EOBs.

20There is no basis on which I can determine that the cost of the treatment plan is payable without finding it to be reasonable and necessary. I will therefore proceed to make that determination.

Are the disputed treatment plans reasonable and necessary?

21Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary and that are incurred as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.³

Psychological Treatment Plan

22I find that the applicant failed to prove that the disputed psychological treatment plan is reasonable and necessary.

23To establish her entitlement for the psychological treatment plan, the applicant relies on:

i. The psychological assessment by Dr. Judith Pilowsky, dated December 2, 2016 diagnosing PTSD⁴ with vehicular anxiety and avoidance, major depressive disorder, symptoms of somatic symptom disorder with predominant pain and other issues; and

ii. The disputed treatment plan prepared by Dr. Pilowsky.

24The respondent rebuts the applicant’s claim on the basis of its insurer examination (“IE”), by Dr. Shariar Moshiri, psychologist, who reported on February 28, 2017 that:

i. The disputed assessment and treatment plans were not reasonable and necessary due to the minor nature of the applicant’s psychological injuries.

ii. There is no basis for a formal psychological diagnosis of the applicant.

iii. The applicant reported that she was “fine” mentally, denied any driving phobia, depression or anxiety and was forthright in saying that the accident has not affected her psychologically.

25The applicant argues that Dr. Moshiri’s IE report is weak because it fails to explain low scores in the Beck Depression Inventory II and Pain Patient Profile tests administered. She also argues that Dr. Moshiri’s documentary review was compromised because he didn’t review “missing pages” from the Pilowsky assessment report.

26The applicant offers no legal basis for the apparent assertion that the respondent, and not the applicant, bears the onus to explain discrepancies in test results, and she offers no explanation or hypothesis for the discrepancy.

27There is no evidence that Dr. Moshiri’s ability to reach accurate results was in fact compromised by “missing pages”. The specific pages cited by the applicant as possibly missing – pages 6-9 of the Pilowsky report – were in fact referenced by Dr. Moshiri at page 5 of the IE report, making this part of the applicant’s argument unconvincing.

28In reviewing the medical reports of the parties, it is immediately evident that both of them depend heavily on frank and forthright self-reporting by the applicant. The medical conclusions in each are based in significant part on the applicant’s answers in clinical interviews and to diagnostic test questions. Indeed, Dr. Pilowsky writes that the contents of her report are “based, to a large degree, on the patient’s presumed truthfulness”.

29The applicant’s statements to Dr. Moshiri are at odds with her statements to Dr. Pilowsky, to whom she described among other things, vehicular anxiety and avoidance, mood swings, anxiety symptoms, cognitive defects and flashbacks.

30The applicant makes no explanation for the discrepancies in self-reporting in the different examinations. Her arguments about methodological flaws in the respondent’s IE report focus on other issues altogether. She does not attack the veracity of the IE report on her own statements. Accordingly, I am confident in giving the IE report of Dr. Moshiri substantial weight in determining how the applicant’s self-reporting speaks to her claims of psychological impairment.

31I note that there is no evidence in the clinical notes and records of the applicant’s family physician, Dr. Baath, of psychological symptoms or complaints arising from the accident, until more than a year had elapsed since the accident and a month after her examination by Dr. Moshiri, leading me to have doubts about whether her complaints were caused by the accident.

32The applicant does not explain the lengthy delay in the onset of allegedly accident-related psychological problems, with no documentation of prior psychological issues. The lack of explanation undermines her claim.

33I find that unexplained and contradictory self-reporting by the applicant in clinical examinations undermines her case that she has met her onus to prove entitlement to benefits for psychological treatment. The appeal respecting the disputed psychological treatment plan is denied.

Physiotherapy Treatment Plans

33The appeal respecting the disputed physiotherapy treatment plans is denied.

34The applicant’s physiotherapy treatment plans consist of reassessments, active exercise sessions and laser treatments.

35The applicant argues that she is entitled to payment in full for both treatment physiotherapy plans because in her view the respondent’s denials were based on the applicant being covered by the MIG. She asserts that the respondent was obliged to reassess her after she was removed from the MIG.

36The applicant also refers to the treatment plan and to the CNRs of her family physician as medical evidence of her accident-related injuries, ongoing pain and other complaints, and her need for the claimed treatment.

37The respondent relies on the IE report of Dr. Irina Safir, dated October 25, 2016 in which the physician noted:

i. soft tissue injuries cervical and thoracolumbar spine strain and strains, and soft tissue injuries of left and right upper extremities, left hip and both ankles;

ii. no significant underlying structural pathology or clinically significant neurological findings; and

iii. her opinion that further formal facility-based physical rehabilitation was not clinically indicated as the applicant has reached maximum therapeutic benefit from treatments.

38The respondent contends that its IE constitutes a rebuttal of the applicant’s claim that the disputed treatment plans are reasonable and necessary.

39I find that the applicant has failed to meet the onus on her to establish that the disputed physiotherapy treatment plans are reasonable and necessary because:

i. The applicant’s removal from the MIG by operation of s.38(11)(1) of the Schedule does not render the conclusion or description of “minor injuries” with respect to her physical injuries clinically invalid. It does not trigger an obligation on the respondent to reassess the applicant medically. It does not entitle her to benefits for treatments that she has not shown to be reasonable and necessary.

ii. The IE by Dr. Safir provides medical reasons for denial on a “not reasonable and necessary basis”, reasons which apply to non-MIG treatment plans and that are persuasive to me in the absence of stronger contradictory evidence. I agree with the respondent that the disputed treatment plans were not denied solely of the basis of the MIG.

iii. I concur with other adjudicators that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment.⁵ Compelling evidence from the applicant herself about the effectiveness of treatment in relieving pain or improving function would also be persuasive. The applicant does not provide that corroborating evidence.

iv. The applicant refers to ongoing complaints recorded by her family physician, Dr. Baath in CNRs but does not point to any entries clearly supporting the specific types of physiotherapy sought. My review of Dr. Baath’s CNRs revealed only references to “physiotherapy” generally, along with advice on staying as active as possible, walking and swimming, and avoiding heavy lifting. Dr. Baath’s advice does not speak directly to the facility-based active exercise sessions, laser treatments and reassessment proposed in the disputed treatment plans.

40In summary, the applicant’s evidence does not prove that, on balance, the claimed physiotherapy treatment plans are reasonable and necessary.

Award

41Section 10 of Regulation 664 (“the Regulation”) permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

42Having dismissed most the applicant’s claims, I have no basis for determining that the insurer unreasonably withheld or delayed any payments.

43I find that there is no evidence of an unreasonable withholding or delay of payment by the respondent.

Request for Interest

44Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

45In this case, payments are overdue for the cost of the psychological assessment set out in paragraph 3 above as issue 1, and interest on that amount is owed.

CONCLUSIONS

46The respondent is liable to pay for the disputed psychological assessment.

47The applicant has not proven her entitlement to the psychological and physiotherapy treatment plans that she claims. Her appeal of these denials is denied.

48The applicant’s claim for an award is without merit and is dismissed.

49The applicant is entitled to interest on overdue payments for the psychological assessment.

Footnotes

1. 1O.Reg. 34/10
2. 2R.R.O. 1990, Reg. 664
3. 3Scarlett v. Belair, 2015 ONSC 3635
4. 4i.e. post-traumatic stress disorder
5. 5SY and Aviva, 2017 CanLII 63263 (ON LAT), at para 19, cited by the respondent.