Applicant v. Aviva Insurance Canada, 2018 CanLII 61168

Licence Appeal Tribunal

Tribunal File Number: 17-003724/AABS

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

and

Aviva Insurance Canada, Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Elvis Viskovic

For the Respondent: Suzanne Clarke

Heard by way of Written Hearing: November 21, 2017

Overview

1The applicant [the applicant] was injured in an automobile accident on May 9, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') from the respondent ("Aviva").

2[The applicant] made a claim for medical benefits for psychological treatment. Aviva denied the benefits on the basis of insurer's examinations ("IE's") which found that N.C's injuries were minor and therefore subject to the $3,500 treatment limit under the Minor Injury Guideline ("MIG")¹.

3On January 28, 2016, [the applicant] submitted a treatment plan for psychotherapy. Aviva denied the plan in a letter dated April 21, 2016, which indicates receipt of the treatment plan on February 11, 2016.

4In Aviva's denial letter dated April 21, 2016, it confirmed the insurer's position that the injuries sustained fell under the Minor Injury Guideline, based on the conclusions of the two insurer's examinations.² I will address the section 38(8) issue regarding the requirement for notice within 10 business days with respect to the April 21 letter, below.

5[The applicant] applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for a determination of her entitlement to benefits. The matter proceeded to a case conference, however, the parties were unable to resolve the issues in dispute and the matter was set down for a written hearing.

Issues in Dispute

6The following issues are in dispute before the Tribunal:

(i) Did the applicant sustain a minor injury as defined by the Schedule and subject to a limit of $3,500.00 for medical benefits?

(ii) If the applicant's injuries fall outside of the MIG, is she entitled to the following treatment plans for medical benefits:

(iii) Is the applicant entitled to receive a medical benefit in the amount of $3,192.25 for psychological services, recommended by Advanced Healthcare Management Inc. in a treatment plan dated January 28, 2016, denied by Aviva on April 21, 2016?

7In her submissions, [the applicant] argues that Aviva's denial letter dated April 21, 2016 did not comply with the 10 business day requirement under section 38(8) of the Schedule. Consequently, based on section 38(11) of the Schedule, [the applicant] submits that Aviva is prohibited from taking the position that she had an impairment to which the MIG applies.

Result

8I have considered all of the evidence submitted by each party and, for the reasons that follow, I have determined that:

(i) Aviva's denial letter did not meet the requirements of section 38(8) of the Schedule, because it did not respond within 10 business days;

(ii) As a result, Aviva is prohibited from taking the position that [the applicant]'s impairment is predominantly a minor injury to which the MIG applies and subject to the $3,500 limit set out in the Schedule; and

(iii) Despite Aviva's failure to respond within the required 10 business days, I find the disputed treatment plan not reasonable and necessary, and therefore not payable.

Issue 1: Did Aviva comply with the notice requirement in section 38(8) of the Schedule?

The Law

9Three sections of the Schedule are relevant to my analysis. Section 38(8) of the Schedule provides as follows:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, and the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

10Section 38(11)1 and 38(11)2 of the Schedule provides as follows:

If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services……described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

Background

11[The applicant] submitted a treatment plan dated January 28, 2016, for psychotherapy. Aviva denied the plan in a letter dated April 21, 2016. [The applicant] provided me with a copy of the Health Claims for Auto Insurance (HCAI)³ report of February 11, 2016, which indicates that the disputed OCF-18 was submitted through HCAI by Advanced Healthcare Management. This OCF-18 was in the amount of $3,192.25. Based on the evidence, I find the disputed treatment plan, dated January 28, 2016, was submitted on February 11, 2016.

12With respect to the April 21, 2016 denial letter, [the applicant] submits that Aviva did not comply with the 10 business day requirement to respond to the claim, as set out in section 38(8), because the treatment plan was received February 11, 2016 and the date of the denial is April 21, 2016.

13Aviva denies this and relies on the HCAI report to support its position. Aviva claims the treatment plan (OCF-18) was dated January 28, 2016 but submitted via HCAI on February 11, 2016. It was denied in HCAI on February 11, 2016. Therefore Aviva maintains it did not breach section 38(8).

14[The applicant] provided a letter dated April 11, 2016, from Aviva. In it, Aviva requested [the applicant] attend an Insurer's Examination to address whether or not the disputed treatment plan is reasonable and necessary. I find the April 11 letter did not meet the section 38(8) requirements. The required Notice was not given within 10 days, and the "medical and any other reasons" why Aviva found the disputed treatment plan to be not reasonable or necessary were not given.

15A second letter dated April 21, 2016 was sent to [the applicant] denying the treatment plan. Based on Aviva's submissions, the denial letter of April 21, 2016 was produced to [the applicant] well beyond the "within 10 business days" requirement laid out in section 38(8).

16I find the April 21, 2016 denial letter failed to meet the 10 business day notice requirement set out in section 38(8). Although Aviva provided evidence that the notice about attending an IE was within the 10 business days, I find this notice letter did not comply with the notice requirement. Therefore, Aviva is prohibited from taking the position that [the applicant] has an impairment that falls within the MIG. Despite my finding, I must still determine whether the disputed treatment plan is reasonable and necessary.

Issue 2: Reasonable and Necessary?

17Section 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. [The applicant] bears the onus of proving on a balance of probabilities that the disputed treatment plan is reasonable and necessary.

[The applicant]'s submissions – Dr. Gladshteyn's Report

18[The applicant] has the onus to establish that the objective evidence before me is not just sequelae of the accident-related injuries, but a separate psychological impairment. [The applicant] submits she suffers from psychological impairments. She relies on two medical reports. The first being, the report of Dr. West, Orthopaedic Surgeon, dated April 11, 2016, who suggested a psychological assessment and counselling. I do not place much weight on Dr. West's report as a psychological opinion is beyond his area of practice.

19The second, is the report of Dr. Ivan Staroversky (supervised by Dr. Ilya Gladshteyn, Psychologist), who diagnosed [the applicant] with Adjustment Disorder with Anxiety, Persistent and Specific Phobia (driver related), as per DSM-5⁴ and ICD-10⁵ criteria.

20Dr. Gladshteyn's report notes [the applicant] suffers from depression. [The applicant] reported she is mildly bothered by agitation, loss of interest, indecisiveness, and changes in sleeping patterns, irritability, changes in appetite, concentration difficulty, and loss of interest in sex. [The applicant] indicated she was moderately bothered by loss of energy and tiredness or fatigue. [The applicant] does not point me to any evidence that establishes that her psychological complaints amount to anything other than accident-related sequelae, which are covered under the MIG.

21[The applicant] submits that the IE conducted by Dr. Sethi, Psychiatrist, dated July 27, 2016 was brief and did not describe the testing used in order to obtain the diagnosis. [The applicant] further submits "that the diagnosis uses the DSM-IV⁶ axes, which are no longer used in the DSM-5. It also defers Axis II which can speak to potential pre-existing psychological issues". Therefore, [the applicant] submits I should not place much weight on Dr. Sethi's report. As the Schedule does not set out a requirement for which axes to use, I am content to consider Dr. Sethi's report. It is based on objective testing and with consideration given to the applicant's other medical documentation.

22With regards to N.C's psychological status, I note that the she did not submit any evidence of a diagnosis which addresses her pre-accident psychological health. The only opinions provided; from Dr. Gladshyten, "she has never received any treatment for any emotional or psychological problems. She has never been prescribed anti-depressant or anti-anxiety medication…" and Dr. Sethi, [the applicant] self-reports that she had "no past psychiatric history, inclusive of past visits to the ER for crisis/stress, past hospitalizations for mental health reasons, not having seen a psychiatrist, psychologist or counsellor in the past, or not having participated in psychotherapy in the past". Keeping in mind that the burden of proof is on [the applicant], there is insufficient evidence before me that [the applicant] suffered from any pre-existing psychological impairments at the time of this accident, nor as a result of this accident, that would require treatment beyond the MIG limits.

23Dr. Gladshyten's report, based on her DSM-5 and ICD-10 testing, indicate mild to moderate psychological results; specifically, "minimal depression" and "mild anxiety". I do not consider this report to be indicative of a significant psychological impairment as a result of the accident. I find Dr. Gladshyten's report to be contradictory, in that the conclusion she reaches is not in line with the minimal and mild test results conducted on [the applicant]

24Both Dr. Gladshyten and Dr. Sethi's reports indicate there are no pre-existing psychological issues, yet they come to very different conclusions. I prefer Dr. Sethi's report, because his conclusion is more in line with the test results. I am not persuaded by [the applicant]'s argument because Dr. Sethi's report found no significant psychological impairment that required further treatment. This is in line with Dr. Gladshyten's objective testing.

Analysis and Reasons

25[The applicant] provided me with a number of medical records, including the clinical notes and records of the William Osler Health System, as well as the clinical notes and records of Kingscross Doctor's Office. These records contain an accident-related diagnosis of pelvic, lower abdomen, neck and back pain. [The applicant]'s evidence points to injuries that are typically identified as minor injuries. There is no objective evidence of accident-related psychological impairment that would require further treatment.

26[The applicant] relies mainly on the report of Dr. Galdshteyn in support of the dispute treatment plan. Dr. Gladshteyn makes a number of suggestions for future treatment, but fails to provide objective evidence to support that further psychological treatment is reasonable and necessary. Although Dr. Gladshyten indicated in the disputed treatment plan, denying [the applicant]'s impairment was predominantly a minor injury, this is not sufficient evidence to convince me that further psychological treatment is reasonable or necessary.

27The burden of proof is on [the applicant] to establish that that psychological treatment is reasonable and necessary. There is, however, insufficient evidence before me to convince me that [the applicant] suffered any psychological injuries from the accident or in its aftermath that would require further treatment. The only evidence of ongoing psychological issues were self-reported by [the applicant] to Dr. Sethi, and relate to the recent birth of her son and the resulting challenges of new and first-time motherhood.

28As a result, I find that there is no compelling evidence to allow me to conclude that the January 28, 2016 treatment plan for $3,192.25 is reasonable or necessary.

Conclusion

29For the reasons above, the limitation noted in section 38(11) applies, and Aviva is prohibited from taking the position that [the applicant] has an impairment that falls within the MIG. However, I find that [the applicant] has not met the onus on her to prove that the psychotherapy treatment sought is reasonable and necessary. The application is denied.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline No. 01/14.
2. 2Dr. Sethi, Psychiatric Report dated July 27, 2016 and Dr. Maistrelli, Orthopaedic Report dated October 18, 2016.
3. 3Health Claims for Auto Insurance (HCAI) is an electronic system for transmitting auto insurance Ontario Claim Forms (OCFs) between health care businesses and insurers in Ontario.
4. 4Diagnostic and Statistical manual of Mental Disorders 4th Edition – Text Revision(DSM-IV-TR)
5. 5International Statistical Classification of Diseases and Related Health Problems 10th Revision
6. 6Diagnostic and Statistical manual of Mental Disorders (DSM-V)