S. P. v. Aviva Insurance Company of Canada, 2018 CanLII 132571

Licence Appeal Tribunal

Date: 2018-11-16

Tribunal File Number: 17-008633AABS

Case Name: 17-008633 v. Aviva Insurance Company of 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:

S. P.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Avvy Go

APPEARANCES:

Counsel for the Applicant:

Alex B. Tzaferis

Counsel for the Respondent:

Amanda R.M. Faulkner

Written Hearing:

September 1, 2018

OVERVIEW

1The applicant, S.P., was injured in a motor vehicle accident on September 17, 2014. His car was hit from behind on a highway. His vehicle was the third impacted in a four car rear-end collision. The applicant was taken to the hospital for examination and was released with prescribed medication. He sought treatment from his family physician shortly after the accident. The applicant also sought physiotherapy treatments.

2At the time of the accident, the applicant was self-employed as an IT consultant. He has resumed his work, albeit on a part-time basis, since the accident.

3The applicant applied to the respondent, Aviva Insurance Company of Canada, for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“Schedule”). The respondent has paid for a number of the benefits sought to date. The respondent also arranged for the applicant to be assessed by several medical health professionals and in the end determined that the applicant is not entitled to a number of benefits claimed.

4A case conference hearing was held to determine the issues in dispute and to address the disclosure of documents and records by the parties. Subsequent to the case conference, the applicant withdrew two of the benefits claimed.

ISSUES

5The Respondent raised a procedural defence in that the failure of the applicant to submit as evidence the Treatment Plans (the OCF-18 forms) for the benefits claimed is fatal to his claim for goods and services recommended in the plan.

6The substantive issues in dispute are:

(a) Is the applicant entitled to receive the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Verity Medical Assessments, submitted September 26, 2017 and denied October 30, 2017?

(b) Is the applicant entitled to receive a medical benefit for psychological treatment in the amount of $2,053.70 recommended by Healthcare Assessment Centre, submitted March 9, 2017 and denied July 4, 2017?

(c) Is the applicant entitled to receive the following medical benefits, each in the amount of $2,436.00 for a treatment plan for physiotherapy recommended by Spinal Touch Wellness Centre submitted and denied as follow:

(i) Submitted February 8, 2016 and denied February 24, 2016;

(ii) Submitted January 21, 2016 and denied March 18, 2016;

(iii) Submitted July 19, 2016 and denied September 5, 2016; and

(iv) Submitted August 28, 2015 and denied February 13, 2016.

(d) Is the applicant entitled to interest in any overdue payment of benefits?

RESULT

7For reasons set out below, I find that the applicant is not entitled to the benefits claimed, and that no interest is payable.

ANALYSIS

Respondent’s Procedural Defence: Whether the applicant’s failure to submit the Treatment Plans into evidence is fatal to the benefits claimed

8Relying on several decisions from this Tribunal², the respondent argued that without the treatment plans in evidence, it is impossible to determine if the proposed treatments are reasonable or necessary and/or if the treatment provider is following the FSCO fee schedule. The respondent further submitted that they have yet to receive a signed copy of any of the treatment plans, or the clinical notes and records of the treatment plan providers to determine if a signed copy exists. The respondent cited s. 38(3) of the Schedule and a decision from FSCO³ in support of their position that a treatment plan must be signed by the insured person and be completed and signed by a regulated health professional.

9The respondent also asked the Tribunal not to consider the treatment plans should the applicant choose to submit them as evidence in reply.

10The applicant did submit the treatment plans in reply, and explained that their initial failure to submit them was an oversight. Citing Rule 3.1 of the Tribunal’s Common Rules of Practice & Procedure, the applicant submitted that there would be no prejudice to the respondent by allowing him to include these treatment plans in his reply.

11I allow the treatment plans to be submitted into evidence. While I have some issues with the applicant attributing his failure to submit all of the treatment plans in question to a simple “oversight”, I do find that the respondent will not be prejudiced by my decision to review these treatment plans in this case, as I have, dismissed the claims made by the applicant. Besides, there would be nothing new to the respondent in the treatment plans as it would have received copies directly from the applicant when claiming the benefits.

Substantive Issues: Is the applicant entitled to the medical benefits and payments sought?

12I find that based on the evidence before me, the applicant has not discharged the burden of proving that the benefits claimed are reasonable and necessary.

13While several benefits have been claimed by the applicant, they can be summarized into two main categories: a) psychological treatment and b) physiotherapy treatment.

14In assessing the applicant’s entitlement to the medical benefits sought, I am guided by section 15 of the Schedule which states that insurers shall pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.

15The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.

Applicant’s Claims for Psychological Treatment

16With respect to the psychological treatment, I find conflicting evidence as to both the nature and seriousness of the psychological issues that the applicant has been experiencing as a result of the accident.

17The applicant has reported experiencing sleeping problems after the accident, anxiety with driving and being a passenger in a vehicle (although he did resume driving shortly after the accident), and feeling stressed about the financial problem he faced as he was not able to work full time. The degree to which he experiences the anxiety and stress appears to be described differently in the various reports.

18The applicant has submitted several reports from Dr. Bodnar, a psychiatrist dated August 13, 2015, August 24, 2016, and February 14, 2017 respectively. Dr. Bodnar’s initial assessment of the applicant in August 2015 concluded that he was suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood; and Somatoform Disorder. In her progress report dated August 24, 2016, Dr. Bodnar noted that the applicant experienced “work and family stress” as a result of the ongoing effects of the accident and recommended further psychotherapy sessions. In her report dated February 14, 2017, which is quite similar to the August 24, 2016 report, Dr. Bodnar noted improvement in the applicant’s situation (including significant improvement in his sleep) but noted that he was still coping with emotional distress and anxiety.

19A psychological assessment was completed by Dr. Woods on August 4, 2015 noting some “inconsistent responding and a general tendency to over report somatic and cognitive symptoms and complaints”, but otherwise suggested “current symptoms of anxiety, depression, somatic preoccupation/focus, and perception of relative functional impairment.”

20The most recent report submitted by the applicant was a report dated April 4, 2018 by Dr. Andrew Shaul, a psychologist. After completing several tests, Dr. Shaul concluded that the applicant is experiencing “mild levels of emotional distress”, and “low levels of depression and anxiety”, yet he diagnosed the applicant with “Adjustment Disorder with Mixed Anxiety and Depressed Mood” based on the clinical interview with the applicant which suggested a level of emotional distress “more significant” than what was represented in the test responses.

21The applicant also relied on the clinical notes of the applicant’s family physician, Dr. Myint noting the applicant was suffering from stress, depressed mood and frustration resulting in inability to concentrate.

22The respondent, on the other hand, relied on the report by Dr. Nikkhou, a psychologist who conducted an Insurer’s Examination (“IE”) of the applicant on June 6, 2017. Dr. Nikkhou noted, among other things, that the applicant “demonstrates a good level of functioning and corresponding satisfactory self-reported emotion and cognitive coping levels, and corresponding minimal levels of psycho-emotional distress observationally and psychometrically”. Dr. Nikkhou also reported that the applicant’s general presentation “was devoid of any significant emotional turmoil, his psychological tests (both objectively and subjectively) revealed minimal psychological distress”.

23The respondent submitted that the applicant has only “subclinical presentation of anxiety” and that the majority of his stress comes from financial insecurity, as indicated in his submissions”.

24The applicant, on the other hand, submits that the evidence of psychological impairment provided by Dr. Myint, Dr. Woods, Dr. Shaul and Dr. Bodnar should be preferred over that of Dr. Nikkhou. I note that Dr. Myint’s clinical note of November 7, 2017 reported that the applicant was suffering from “stress depressed mood and frustration resulting in inability to concentrate”. Dr. Woods’ report, dated three years ago, suggested more a serious adjustment disorder.

25The progress reports by Dr. Bodnar (and the clinical notes of Dr. Myint) did not provide any diagnosis of the applicant, other than stating that he still has anxiety with work and family stress, while Dr. Shaul’s diagnosis of Adjustment Disorder appears to be at odds with his own clinical finding of “low levels of depression and anxiety”. Similarly Dr. Woods noted inconsistent response in the applicant and a tendency to over report his condition. Dr. Shaul’s and Dr. Woods’ conflicting findings, the lack of diagnosis in Dr. Bodnar’s progress reports and in Dr. Myint’s reports, the number of findings that the applicant was suffering from “work and family stress”, coupled with the conclusion of Dr. Nikkhou of “minimal levels of psycho-emotional distress”, lead me to conclude that the applicant has not discharged his burden of showing that the psychological treatment he proposed is reasonable or necessary.

Applicant’s Claim for Physiotherapy Treatment

26The applicant’s submission with respect to his need for physiotherapy treatment was limited, other than referring to several reports that were done in 2015, including a neurological report and a nerve conduction study by Dr. Temple, and clinical notes from his family physician, Dr. Myint. Dr. Temple’s neurological report indicated the applicant suffered a whiplash injury to the cervical spine while his conduction study reported evidence of “mild bilateral carpel tunnel syndrome".

27As the respondent has rightly pointed out, there were a number of gaps missing in Dr. Myint’s clinical notes, which were only dated up to November 24, 2015, and then again from August 8, 2016 to May 17, 2017. Of the most recent records, the applicant complained of issues of pain on March 31, 2016, June 7, and September 9, 2016.

28The respondent relied on several IE reports, namely, physiatry reports from Dr. Bentley (dated September 4, 2015, October 7, and 30, 2015, and February 24, 2016), and a physiatrist report from Dr. Ko. These reports did not find any objective evidence of impairment of the applicant.

29The applicant asked the Tribunal to disregard Dr. Bentley’s reports on the basis that he has not done an in-person examination of the applicant. But as the respondent pointed out, Dr. Bentley’s first report of the applicant was based on an in-person examination, while his subsequent reports were based on paper review.

30In reply, the applicant repeated some of the same arguments he had made with respect to Dr. Bentley’s report and his conclusion that the treatment was not necessary because “at more than 1 year post-MVA [the applicant] would have reached maximum therapeutic benefit”, an assessment that the applicant claims was unsubstantiated.

31However, Dr. Bentley was not the only one who suggested that the treatment plan was not reasonable and necessary. Dr. Ko also reached the same conclusion after assessing the applicant in person and finding no objective evidence of impairment.

32The applicant also relied on Dr. Temple, the neurologist, who opined that the applicant continue with the therapy to the cervical spine. Dr. Temple’s report noted that there are no major findings other than some degenerative changes in his cervical spine and some narrowing of the right neutral foramina at C5-C6. Dr. Temple did suggest the applicant continue with his chiropractic therapy but did not indicate how long that therapy should last. I further note that Dr. Temple saw the applicant on July 27, 2015, about three weeks prior to the in person assessment conducted by Dr. Bentley, and has not seen the applicant since then.

33In determining whether the treatment sought by the applicant is reasonable and necessary, I prefer the reports prepared by Dr. Bentley and Dr. Ko over that of Dr. Temple. Dr. Bentley and Dr. Ko were specifically asked to assess the applicant about the treatment he had requested, and they conducted physical examination of the applicant, including examinations of his functions in light of the treatment plans proposed. Dr. Temple, on the other hand, was a neurologist whose task was mainly to assess the neurological function of the applicant, and offered no opinion about any of the treatment plans proposed. Further, as noted above, Other than suggesting to the applicant to continue with the chiropractic treatment, Dr. Temple did not opine on what kind of physiotherapy treatment the applicant should receive and the duration of such treatment. As such, I decided to give Dr. Temple’s report less weight.

34Ultimately, the applicant is the one who needs to discharge the burden of showing why the physiotherapy treatments he seeks are reasonable and necessary. I find the applicant has not discharged the onus required of him to prove that the physiotherapy treatments are reasonable and necessary in view of the evidence before me.

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

35As I find that the applicant is not entitled to the benefits claimed, no interest is payable because there are no overdue payments owing.

ORDER

36The applicant’s claims are dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2G.P. v. Unifund Insurance Company, 16-003165, June 12, 2017; K.K. v. Aviva Insurance, 16-000863, dated June 28, 2017; A.H. v. Belair Direct Insurance Company, 16-001064, August 8, 2017; and N.H. v. Aviva Insurance Company, 17-001309, January 30, 2018
3. 3Chaparina v. State Farm Mutual Automobile Insurance Company, FSCO A14-007595, February 19, 2016