17-004793 v Allstate Canada, 2018 CanLII 13189

Date: 2018-01-24

Tribunal File Number: 17-004793/AABS

Case Name: 17-004793 v Allstate Canada

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Michael Wentzel, Counsel

For the Respondent: Lisa Quan, Counsel

HEARD in Writing on January 10, 2018

OVERVIEW

1[Applicant] (“the applicant”) was involved in an automobile accident on April 28, 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 a medical benefit in the amount of $2,820.36 for psychological services recommended by Dr. Sandra Sagrati of Pilowsky Psychology Professional Corp. in a treatment plan dated April 17, 2016, and denied by the respondent on July 5, 2016?

2. 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?

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

FINDINGS

4The applicant has not proven his entitlement to the disputed benefit for psychological treatment. The appeal is denied.

5The applicant’s request for an award is without merit and is dismissed.

6There are no overdue payments and hence no interest owing by the respondent.

REASONS

7Sections 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

8To establish his entitlement for the psychological treatment plan, the applicant relies on:

i. Two reassessments over the course of psychological treatment by Dr. Judith Pilowsky, dated January 3 and April 13, 2017 respectively, in which the psychologist:

a. diagnoses PTSD⁴ with phobic avoidance to driving and travelling as a passenger in automobiles, adjustment disorder with depressed mood, and somatic symptom disorder with predominant moderate pain; and

b. recommends more psychological sessions and attendance at a “sleep lab” to deal with complaints of disturbed sleep.

ii. Earlier assessments by Dr. Pilowsky noting the applicant’s complaints of irritability, diminished cognitive function, depressed mood and irritability, and sleep problems, and recommending assessment and treatment plans that were subsequently approved by the respondent.

9The respondent relies on its insurer examination (“IE”), by Dr. Tatiana Dumitrascu, dated July 5, 2017 which concluded that:

i. Based on the applicant’s responses to clinical interview questions, there was no evidence of depressed mood, flashbacks or intrusive thoughts, and that there was evidence of improved pain symptoms and sleep patterns – and therefore no interview evidence for a formal psychological diagnosis of the applicant.

ii. Results from validity testing such as the Structured Inventory of Malingered Symptomology Inventory 2-A revealed over-endorsed emotional symptoms and cognitive symptoms on the applicant’s part – pointing to unreliability of other diagnostic tests.

iii. The applicant’s claimed treatment plan was not reasonable and necessary.

10The applicant contends that Dr. Pilowsky’s recommendations and the proposed treatment plan should be given greater weight than Dr. Dumitrascu’s IE report because Dr. Pilowsky’s ongoing multiple treatment sessions and assessments represent “an intimate knowledge of [his] psychological condition and progression” that cannot be matched by an IE assessor in a single examination.

11The respondent argues that Dr. Pilowsky’s reports are weakened because:

i. They don’t explain the applicant’s very slow progress and in some aspects deterioration in condition with respect to pain and how the proposed new series of treatments would alter those trends.

ii. They lack validity testing – unlike the IE report.

iii. They are uncorroborated by any contemporaneous evidence of the applicant’s psychological and especially pain-related complaints.

12The applicant offers no rebuttal to the respondent’s criticism of his medical evidence nor does he offer a persuasive criticism of Dr. Dumitrascu’s methodology.

13In reviewing the medical reports of the parties, it is immediately evident that all 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 reports are “based, to a large degree, on the patient’s presumed truthfulness”.

14An applicant’s own words in examination interviews are powerful evidence in determining whether the psychological problems claimed are real and whether treatment and assessment plans are reasonable and necessary. An applicant’s credibility and consistency are at the core of meeting the onus to prove that claimed benefits are reasonable and necessary.

15The applicant’s statements to Dr. Dumitrascu are at odds with his statements to Dr. Pilowsky: he denies depressed mood, minimizes driving anxiety (and he drives often), denies flashbacks or intrusive thoughts, and speaks to improved pain symptoms and sleep patterns in contrast to the deterioration noted by Dr. Pilowsky.

16The applicant makes no explanation for the discrepancies in self-reporting in the different examinations. 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. Dumitrascu substantial weight in determining how the applicant’s self-reporting speaks to her claims of psychological impairment.

17I note that there is no supporting evidence in the clinical notes and records of the applicant’s family physician, Dr. Verinder Molhotra, of psychological symptoms or complaints arising from the accident. There is no corroborating evidence, of the serious pain he complains of or of the intensive physiotherapy and medications he told Dr. Dumitrascu he was taking to deal with it. The evidence is lacking because the applicant provided none despite his commitments, and an Order from the Tribunal, to do so.

18I find that unexplained and contradictory self-reporting by the applicant in clinical examinations undermines his case that he has met the onus on him to prove entitlement to benefits for psychological treatment. His failure to provide corroborating evidence to prove statements made to Dr. Dimitrascu further diminishes the credibility of his claim. The appeal respecting the disputed psychological treatment plan is denied.

Award

19Section 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 an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

20The applicant’s request for an award is denied, because I have denied his claim.

Request for Interest

21Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

22Having denied the appeal, no payments are overdue and no interest is payable.

CONCLUSIONS

23The applicant has not proven his entitlement to the psychological treatment plan that he claims. His appeal of these denials is denied.

24The applicant’s claim for an award is dismissed.

25No interest on overdue payments is payable.

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