N. C. v. Aviva Insurance Canada
Tribunal File Number: 17-004085/AABS
Case Name: 17-004085 v Aviva Insurance Canada
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:
N. C.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES:
For the Applicant: Lawrence A. Berg, counsel
For the Respondent: Karla Gnanasegaram, counsel
Writing Hearing: November 15, 2017
BACKGROUND
1The applicant was injured in a motor vehicle accident (“MVA”) on August 22, 2015. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The respondent denied the applicant’s claim for a psychological assessment on the basis that the benefit was not reasonable and necessary.
2The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the “Tribunal”) for resolution. A case conference was held on September 5, 2017 but the parties were unable to resolve the dispute.
ISSUES
3The only issue in dispute is as follows:
a. Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for a psychological assessment set out in the treatment plan dated March 2, 2017 by Dr. Shaul of the The Physio Clinic at West Durham?
RESULT
4The applicant is not entitled to the cost of the psychological assessment.
ANALYSIS
5Section 15(1) of the Schedule provides that an insurer is required to pay for all reasonable and necessary expenses incurred by the insured person. With respect to the disputed cost of examination, the applicant has to prove that, on a balance of probabilities, it is reasonable and necessary to assess whether she suffers from a psychological impairment.
6Overall, I did not find that the applicant provided sufficient evidence that the psychological assessment was reasonable and necessary on a balance of probabilities. While there was some evidence that the applicant may warrant a psychological assessment, I do not find that the applicant met her onus. I note that the applicant’s written submissions were only 1.5 pages.
7The applicant sustained physical injury to the left side of her body during a MVA when she was a passenger on a motor cycle. She underwent arthroscopic knee surgery on April 19, 2016. She returned to work as a fitness and dance instructor in September 2016.
8I have reviewed the medical reports of Dr. Abuzgaya, orthopedic surgeon, Dr. Shaul, clinical psychologist and Dr. Challis, clinical psychologist. No clinical notes or records of the applicant’s family physician were submitted.
9Other than the report of Dr. Shaul, the evidence submitted by the applicant relates to her orthopedic injury, which is undisputed. In the October 4, 2016 report of Dr. Abuzgaya, her treating orthopedic surgeon, the following post-script paragraph is found at page 7 of 9:
Of note, [the applicant] followed up with my office by telephone on September 29, 2016, the day following my assessment. She spoke with my assistant, Myra D’Souza. [The applicant] was tearful and upset. She stated that she had been a stay-at-home mom for 15 years. She was disheartened about the fact that she was told her left knee might pose problems for her in the near future. She reported that being self-employed as a dance instructor was a ‘fresh start’ for her and that dancing was not just her job and a hobby. She stated it represented her freedom and gave her a sense of independence and the ability to look after herself.
10I find this evidence unreliable. While the Tribunal’s evidentiary rules permit hearsay, Dr. Abuzgaya is an orthopedic surgeon, not a psychologist, the information was communicated from his assistant and was included at the bottom of Dr. Abuzgaya’s report as a post-script. Therefore, I give little weight to the paragraph above.
11Dr. Shaul’s psychological pre-screen report of March 2, 2017 indicates that the applicant experiences pain, irritability, frustration, symptoms of depression, sleep difficulties, social decline, cognitive difficulties, and nervousness while travelling in a vehicle since her MVA. Dr. Shaul diagnoses the applicant as suffering from an acute stress disorder.
12The respondent’s s. 44 psychological medical assessor, Dr. Challis, conducted an assessment of the applicant on May 9, 2017. Dr. Challis found the applicant to demonstrate mild and below average symptoms of depression, anxiety and somatization. Dr. Challis concludes at pages 5 and 6 of his report that:
From a strictly psychological perspective, although [the applicant] continues to report mild symptomatology, she does not present with any identifiable impairment as a direct result of her psychological symptoms. She does not, in my opinion meet criteria for a psychological diagnosis.
13With respect to the reasonableness and necessity of the psychological assessment, he indicates:
The psychological screening measures indicate that the claimant reports sleep difficulties, changes in her mood and feeling sad and depressed. The OCF-18 identifies an Acute Stress reaction, which, given that the accident occurred approximately 18 months ago, is an inappropriate diagnosis at this time. Therefore, from a strictly psychological perspective the proposed OCF-18 requesting a comprehensive psychological assessment cannot be considered to be reasonable and necessary.
14Overall, I found the respondent’s evidence to be more compelling than that provided by the applicant. Dr. Challis conducted an assessment of the applicant and found only mild issues, which in his opinion did not warrant the psychological assessment proposed in the treatment plan. I am persuaded by the comments of Dr. Challis regarding the lack of identifiable impairment and the inappropriate diagnosis made by Dr. Shaul. Dr. Abuzgaya, orthopedic surgeon, provided evidence beyond his area of expertise in passing about the applicant’s psychological state.
15I agree with the respondent’s characterization that the evidence relied upon by the applicant does not warrant a psychological assessment at this stage of the claim. I do not find that the applicant has met her onus that the cost of examination is reasonable and necessary on a balance of probabilities.
ORDER
16The applicant’s claim is dismissed.
Released: February 26, 2018
Anita Goela, Adjudicator