[The Applicant] v. Aviva Insurance Company, 2018 CanLII 81953

Date: 2018-05-11

Tribunal File Number: 17-006480/AABS

Case Name: 17-006480 v Aviva Insurance Company

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:

[The Applicant]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

Paralegal for the Applicant: Joel E. Lewis

Counsel for the Respondent: Surina Sud

Written Hearing: March 20, 2018

Overview

1The applicant was involved in an automobile accident on November 29, 2015. At the time of the accident, she was a cyclist in a bike lane when she was struck by the door of a parked vehicle, knocking her into another vehicle, before she fell to the road. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (Schedule).

2The respondent, Aviva, denied the medical benefits for psychotherapy on the basis that the proposed treatment plan was not incurred and is not reasonable and necessary. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.

3The matter proceeded to a Case Conference, but the parties were unable to resolve the issues and proceeded to this Hearing.

ISSUES

i. The following issues must be determined by the Tribunal: Whether the applicant is entitled to a medical benefit in the amount of $1,196.88 for psychological (psychotherapy) services, as recommended by Dr. Ricardo Harris in a treatment plan dated June 12, 2017 that was denied by the respondent on August 29, 2017?

ii. Interest on any overdue payment of benefits.

RESULT

4For the reasons that follow, I find that the applicant is entitled to the medical benefit in the amount of $1,196.88 for psychological services as recommended by Dr. Ricardo Harris because it is reasonable and necessary. The applicant is entitled to interest on any overdue benefits incurred.

ANALYSIS

5Based on the evidence provided, I find that the treatment plan for psychological services is reasonable and necessary because [the applicant’s] self-reporting of cycling-specific fear is consistent and Dr. Harris’s recommendations for treatment, which I prefer over those of Dr. Syed, are proportional to [the applicant’s] impairments and stated goals for recovery.

6Under s.14 of the Schedule, an insurer is liable to pay medical benefits under ss. 15 to 17, to or on behalf of an insured person who sustains an impairment as a result of an accident. In viewing the issue in dispute, I must determine whether the benefits are reasonable and necessary and whether they have been incurred as a result of the accident.

Is the medical benefit in the amount of $1196.88 for psychological services reasonable and necessary?

7[The applicant] provided medical evidence of her ongoing fear and anxiety resulting from the accident, which I find compelling. Her OCF-18 was prepared by Dr. Ricardo Harris, psychologist, following a Psychological Assessment by same. In the treatment plan in dispute, Dr. Harris referred [the applicant] to his associate, Mr. Flavio Iammarino, in order to accommodate [the applicant’s] move to [another city] for an internship. Dr. Harris indicates that the therapeutic interventions outlined in his Report are reasonable and necessary in order to help achieve [the applicant’s] goal of being able to ride a bike again without fear: 1) teaching her relaxation techniques to cope with her anxiety; and 2) starting [the applicant] on a systematic desensitisation programme in order to begin cycling again.² I find Dr. Harris’s Report and accompanying OCF-18 to be convincing and have afforded it significant weight as a result.

8Although both psychological assessments consisted of a series of objective psychological tests, I find that Dr. Harris’s Report spoke more directly to the specific situation faced by [the applicant] in her recovery: namely, how her psychological impairments are affecting her daily life and what treatment can be done in order to help her overcome her issues and return to her previous level of functioning. For example, Dr. Harris is keenly aware and makes reference throughout his Report that [the applicant’s] stated goal for recovery is relatively simple and straightforward: to get back to cycling. Of note: Dr. Harris details how [the applicant] tries not to talk or think about the accident and evades cycling in general; he indicates that she gets emotionally upset when she sees a cyclist in traffic; he describes that cycling is her main form of transportation and is important to her socially. This acknowledgment of [the applicant’s] self-reporting is important because it informs the proposed treatment. I find that Dr. Harris clearly links [the applicant’s] psychological issues to the accident and his proposed treatment is proportional to the stated goal.

9In contrast, I find Dr. Amena Syed’s Report—submitted by Aviva—to be somewhat generic and, at times, disingenuous, given [the applicant’s] self-reporting and her rather humble goal for recovery. Although [the applicant] complained of pain initially and still has some shoulder pain, Dr. Syed reports that [the applicant’s] physical issues are “more of a concern for her than her psychological issues.” I find this statement insincere, as Dr. Syed indicates earlier in her Report that [the applicant] described feeling “50% disabled from a psychological perspective and 10% disabled from a physical perspective as a result of her accident.”³ In the same paragraph, when Dr. Syed inquires about [the applicant’s] goals for treatment, [the applicant] explains that cycling is a huge part of her life—socially and physically—and that she just wants to overcome her anxiety.⁴

10With [the applicant’s] statements and her stated goal for recovery in mind, I am not persuaded that Dr. Syed can determine that the real issue facing [the applicant] is a physical one, that her psychological symptoms described by Dr. Harris had somehow resolved after two months, or that the fear [the applicant] has of cycling is unrelated to the accident she had while cycling. Dr. Syed does not address why the proposed treatment would not be helpful to [the applicant’s] recovery, just that it is not reasonable and necessary. As I find the diagnosis is not proportional to [the applicant’s] reporting, I have afforded Dr. Syed’s report less weight.

11I find [the applicant’s] self-reporting and prioritization of her goals compelling because I find that the denial of the treatment plan would indeed be detrimental to her long-term health, as submitted, and all of the tests conducted to determine malingering and amplification came back negative. [The applicant] likes to bike for social, health and transportation reasons. She was in an accident while riding her bike and now has fear of getting back on her bike. She is open to counselling for the sole reason to help her overcome this fear and get back to doing something she enjoys and evidently needs. Dr. Harris provided a plan that is proportional to [the applicant’s] goals at a reasonable cost and on an appropriate timeline. As I find the opinion and report of Dr. Harris to be the more persuasive and credible indication of the true nature of [the applicant’s] injuries, I also follow Dr. Harris’s recommendation in finding that the treatment plan is reasonable and necessary, pursuant to s.15 of the Schedule.

12Finally, Aviva attempts to argue that the proposed treatment plan is not reasonable and necessary because the plan recommends psychological counselling sessions be conducted by Mr. Iammarino, who is not a registered psychologist. I disagree. The proposed treatment plan indicates that the treatment should focus on teaching [the applicant] relaxation techniques to cope with her anxiety and to create a desensitisation program so that [the applicant] can overcome her phobia of cycling. The goals of the plan do not require a psychologist.

13For the reasons above, I find that the treatment plan for psychological (psychotherapy) services, as recommended by Dr. Ricardo Harris in a treatment plan dated June 12, 2017, to be reasonable and necessary.

Was the medical benefit in the amount of $1196.88 for psychological services incurred by [the applicant]?

14Aviva submits that the medical benefit for psychological services is not payable because [the applicant] did not incur the costs at the time of her application to the Tribunal. In support of this argument, Aviva points me to ss. 15(1) and 3(7)(e) of the Schedule, as well as the Tribunal’s decision in F.S. v. Aviva Insurance Canada.⁵ I disagree and find that the services have been incurred.

15First, the decision in F.S. v. Aviva is not binding on me, and I respectfully disagree with its interpretation of incurred and its application here.

16Second, under s. 3(7)(e), a service is not incurred by an insured person unless,

i. the insured person has received the services to which the expense relates, or

ii. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense.

There is no indication in the language of s. 3(7)(e)(i) or (ii) that the costs must be incurred at the time of application to the Tribunal, as Aviva suggests. [the applicant] provided a Progress Report from Mr. Iammarino dated January 24, 2018,⁶ detailing [the applicant’s] improvement towards overcoming her cycling-related fear and anxiety. Based on this report, [the applicant’s] first counselling session occurred on October 19, 2017 and she had undergone five sessions in total. In my view, this is sufficient evidence that the benefit, or at least a portion of the benefit, has been incurred, as [the applicant] has received the services to which the expense relates.

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

17As I have determined that the medical benefits sought by [the applicant] are reasonable and necessary, [the applicant] is entitled to interest on the payment of overdue benefits incurred, pursuant to s. 51 of the Schedule.

CONCLUSION

18I find that [the applicant] is entitled to the medical benefit in the amount of $1,196.88 for psychological (psychotherapy) services, as recommended by Dr. Ricardo Harris in a treatment plan dated June 12, 2017. As the benefit is reasonable and necessary, [the applicant] is entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Psychological Assessment Report of Dr. Ricardo Harris, Psychologist, dated June 12, 2017; Applicant’s Materials, Tab 8, at 9.
3. 3Insurer’s Examination: Psychologist Assessment Report by Dr. Syed, dated August 28, 2017, at 19.
4. 4Ibid.
5. 5F.S. (17-002313) v. Aviva Insurance Canada, 2017 CanLII 81573 (ON LAT), at paras 6 and 10.
6. 6Progress Report of Flavio Iammarino, dated January 24, 2018, Applicant’s Materials, Tab 11.