C.D. 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:
C.D. Appellant(s)
and
Aviva Insurance Canada Respondent
DECISION
PANEL:
Avvy Go, Adjudicator
APPEARANCES:
For the Applicant: Jaspreet Dhaliwal
For the Respondent: Patrick Sinclair
HEARD:
In Writing on: April 23, 2018
OVERVIEW
1The applicant, C.D., was injured in a single motor vehicle accident on December 25, 2016. Emergency services attended at the scene, but the applicant was not taken to the hospital. In the same afternoon of December 25, 2016, the applicant attended at William Osler Health System (the “hospital”) with complaints of bilateral shoulder pain, headaches, and a left eye injury.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”) which were denied by the respondent. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
3As per an order dated November 7, 2018 from the Tribunal, I have been asked to decide the following issues:
a) Did the applicant sustain predominantly minor injuries as defined under the Schedule?1
b) Is the applicant entitled to a medical benefit in the amount of $9,024.34 for a chronic pain program recommended by Prime Health Care in a treatment plan (OCF-18) submitted on May 30, 2018 and denied on June 8, 2018?
c) Is the applicant entitled to the cost of an examination in the amount of $2,000.00 for the completion of a psychological assessment recommended by Prime Health Care submitted on June 26, 2017, and denied on June 28, 2017?
d) Is the applicant entitled to the cost of examination in the amount of $1,950.00 for the completion of an MRI assessment recommended by Prime Health Care submitted on June 12, 2018, and denied on June 22, 2018?
e) Is the applicant entitled to the cost of an examination in the amount of $200.00 for the completion of a chronic pain assessment report by Prime Health Care submitted on April 18, 2018?
f) Is the applicant entitled to receive interest on any overdue amounts?
g) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4For the reasons set out below, I find that the applicant is not entitled to the benefits claimed and as such no interest will be payable. I also find the applicant is not entitled to any award.
ANALYSIS
Issue 1: Is the Applicant entitled to the benefits claimed?
5Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.
6Further, section 14 and 15 of the Schedule provide that an insurer is only 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 any claimed medical expenses are reasonable and necessary.
a) Is the applicant entitled to a medical benefit in the amount of $9,024.34 for chronic pain program recommended by Prime Health Care in a treatment plan (OCF-18) submitted on May 30, 2018 and denied on June 8, 2018?
7The applicant is seeking payment for a treatment plan submitted by Dr. Karmy, which consists of an initial psychological consultation, psychotherapy sessions, chiropractic rehabilitation, a functional exercise program, spinal decompression therapy, acupuncture, massage therapy and a chronic pain progress report. The applicant submitted that the treatment is reasonable and necessary based on Dr. Karmy’s conclusion that the applicant suffers from a chronic pain condition in relation to the subject accident and would benefit from this program.
8The respondent’s reasons for refusing to cover the treatment plan by Dr. Karmy can be summarized into three main reasons:
a. The deficiencies in Dr. Karmy’s report;
b. The s.44 insurer’s examination (IE) reports do not support the finding of Dr. Karmy; and
c. Credibility of the applicant
9For reasons set out below, I find that the applicant has not satisfied the burden on her of proving that the treatment plan is reasonable and necessary.
10I agree with the respondent that Dr. Karmy’s report was deficient because he relied almost entirely on the applicant’s self-reporting, including information concerning her injuries, treatment and post-accident functionality to form his diagnosis. The information the applicant provided to Dr. Karmy was not accurate. For instance, the applicant reported that she attended with her family doctor shortly after the accident and was prescribed with pain medication and a recommendation to continue “rehabilitation sessions”. Yet according to the clinical notes obtained from the applicant’s family doctor, the applicant never attended her family doctor in relation to the accident. The clinical notes and records of the applicant’s family doctor reflect no ongoing accident-related complaints, including no complaints of pain or psychological issues. In addition, the applicant’s OHIP summary from December 3, 2013 through to October 31, 2018 showed an absence of any accident-related complaints to OHIP providers.
11Another example of the inaccuracies of the applicant’s self report is that Dr. Karmy noted the applicant reported that she became unable to resume her usual occupation or secure any new suitable employment after the accident. This self-report is contradicted by the applicant’s resume and Linked-in Profile which indicate that the applicant worked at both [a retailer] and [a company] post-accident. These documents also indicate that the applicant re-enrolled in college in 2018. The respondent also submitted as evidence a copy of the [company’s] corporate profile that lists the applicant as one of two directors of the company. Finally, the applicant’s Record of Employment (ROE) from her pre-accident employer indicated that she quit after the accident not due to injury, but because she moved.
12I find these inaccuracies cast serious doubt on the applicant’s credibility, and therefore her self-report, with respect to the effect of the accident on her health. While given an opportunity to do so, the applicant did not provide any reply submissions to dispute the respondent’s assertions about the unreliability of her self-reporting. As Dr. Karmy’s report was based largely on the applicant’s self-report, I therefore give the report little weight.
13I now turn to the IE reports with regard to the applicant. Two in particular are relevant to Dr. Karmy’s treatment plan. The first is the IE report by Dr. Loritz who assessed the applicant on December 18, 2017 to address, among other things, the necessity of a chronic pain assessment. At the time, the applicant reported to Dr. Loritz that she was experiencing only low back and neck pain, and that her left shoulder, knee and hip/buttock pain had previously resolved. The applicant also reported having achieved 70% improvement in her pain from the accident and reported no complaints of radiculopathy or numbness. The applicant also reported continuing with her college program three months after the accident, and being independent with self-care, continuing her usual housekeeping tasks, and being able to drive post-accident. Dr. Loritz opined that the chronic pain treatment plan was not appropriate for the applicant’s injuries as there were no indications of mechanical or neurological causes for the applicant’s pain complaints, and her injuries were clearly defined as soft tissue injuries amenable to management with conventional physical rehabilitation techniques.
14The respondent also arranged for a multidisciplinary assessment report for the applicant on January 25, 2019. The respondent has obtained an authorization to allow the information from this report to be shared across the various benefits claimed. Included in this multidisciplinary assessment report was a report by Dr. Jacqueline Auguste, an orthopedic surgeon who examined the applicant and found no compelling evidence of any substantive musculoligamentous, osseous or neurologic impairment on clinical testing that could be causally linked to the accident. Dr. Auguste further opined that this finding “is in keeping with the same conclusion by Dr. Loritz, general practitioner, over one year ago”.
15While I recognize that chronic pain is not a condition that would always show up in diagnostics, the burden falls on the applicant to discharge her burden of establishing that the treatment plan proposed by Dr. Karmy was reasonable and necessary.
16Given the lack of credibility and inconsistencies of the applicant’s self-report to Dr. Karmy, the fact that Dr. Karmy’s proposed treatment plan is based largely on the applicant’s self-report and the insufficient evidence showing that the applicant suffers from chronic pain, I dismiss the applicant’s claim for the chronic pain program.
b) Is the applicant entitled to the cost of an examination in the amount of $2,000.00 for the completion of a psychological assessment recommended by Prime Health Care submitted on June 26, 2017, and denied on June 28, 2017?
17Dr. Shaul of Prime Health Care submitted this treatment plan, which consists of psychological assessment, testing review of medical documents and psychological screening. The applicant submitted that as a result of the accident she suffers “emotional shock and stress and symptoms and signs involving emotional state”. The applicant submitted that the goal of the treatment is to help the applicant return to activities of normal living.
18The applicant relied on the pre-screening interview report of Dr. Shaul in support of her claim. The pre-screening report noted that “the applicant requires a comprehensive psychological assessment to gain a better understanding of the many adverse changes that have occurred in her life since the time of the accident, including her reported feelings of pain, irritability, frustration, depression, lack of sleep, cognitive difficulties and nervousness when travelling in a vehicle”.
19The respondent, on the other hand, submitted that this treatment plan is not reasonable and necessary, first of all by calling into question whether the applicant was assessed by Dr. Shaul, or by Ms. Ilios, a Registered Psychotherapist. Citing previous decisions from this Tribunal2, the respondent argued that the direct involvement of the expert is necessary for an expert to opine effectively.
20I note, as the respondent has suggested, that the pre-screening report does not clearly state that the applicant was assessed by Dr. Shaul. I also note that Dr. Shaul has not provided any clinical notes and records despite being ordered to do so by the Tribunal in an order dated November 7, 2018. The failure of Dr. Shaul to provide his clinical notes would appear to confirm that the assessment of the applicant may not have been done by Dr. Shaul, but by Ms. Ilios, a non-psychologist. As such, I give Dr. Shaul’s pre-screening report less weight.
21I prefer the evidence contained in the two IE reports dealing with the applicant’s psychological assessment for the following reasons. One of the reports was prepared by Dr. Mackay who assessed the applicant on September 19, 2017 to assess Dr. Shaul’s proposed assessment. Dr. Mackay conducted an interview and psychological testing with the applicant, which Dr. Shaul did not. Dr. Mackay raised validity concerns of the psychological test with the applicant. Dr. Mackay concluded that while the applicant may have mild symptoms of distress and anxiety, there was no objective and reliable information indicating she has psychological symptoms of a breadth or depth that meet the criteria for an accident-related psychological diagnosis, and as such the applicant did not require any psychological treatment.
22I also reviewed the report by Dr. Syed, as part of the multidisciplinary assessment report as noted above in paragraph 17. Dr. Syed performed a number of psychological tests of the applicant and raised validity concerns similar to those noted by Dr. Mackay. Specifically, Dr. Syed opined:
There is some evidence suggesting that [the applicant] is suffering from maladaptive beliefs about her level of disability resulting in psychological distress. The severity unfortunately cannot be determined due to invalidity of the test results. My clinical impression is that [the applicant] could be suffering from some psychological distress however the degree as outlined in this evaluation is greater than what she may be experiencing.
23Due to the unreliable and invalid findings of the evaluation, Dr. Syed went on to rule out adjustment disorder with anxiety and depressed mood, and instead concluded that the applicant’s scores were indicative of feigning psychological impairment.
24The applicant did not provide any reply submissions to respond to any of the respondent’s submissions. Given my assessment of Dr. Shaul’s pre-screening report, which I have accorded little weight for the reasons set out above, and because I prefer the IE reports, for the above-noted reasons, both of which find that the applicant did not require any psychological treatment, I therefore find the psychological assessment plan not reasonable and necessary.
c) Is the applicant entitled to the cost of examination in the amount of $1,950.00 for the completion of an MRI assessment recommended by Prime Health Care submitted on June 12, 2018, and denied on June 22, 2018?
25Dr. Livshin, a physician, submitted a treatment plan dated June 12, 2018 which consists of an MRI and transportation services, if necessary. The applicant submitted that she suffers from chronic strain/sprain of the cervical spine, thoracic spine, lumber spine, post headache and behavioural issues, such as anxiety disorder and sleep disorders. The applicant sought an MRI to visualize detailed internal structure. Dr. Karmy in his chronic pain assessment also recommended this MRI due to the applicant’s chronic lower back pain.
26I have already explained why I give Dr. Karmy’s report and recommendation little weight. Several of the IE reports have ruled out any neurological or mechanical concerns. In addition, as the respondent pointed out, when an MRI is medically necessary, it is available through funding from OHIP. There is no indication that the applicant has sought the cost of this treatment plan through OHIP, nor that any OHIP provider was ever approached about the need for an MRI. I agree with the respondent that pursuant to s.47(2) of the Schedule, accident benefits are secondary insurance. The fact that the applicant has never sought OHIP coverage for the cost of the MRI renders this claim unreasonable.
d) Is the applicant entitled to the cost of an examination in the amount of $200.00 for the completion of a chronic pain assessment report by Prime Health Care submitted on April 18, 2018?
27The applicant submitted this as the cost of the assessment report prepared by Dr. Karmy for which there was no formal denial from the respondent.
28The respondent submitted that the applicant never provided an OCF-18 for this cost and relied on s.38(1) of the Schedule to maintain that no denial was required. In addition, the respondent submitted that because no treatment plan was submitted and denied, it is not an issue that is properly before the Tribunal. In the further alternative, the respondent submitted that the cost was incurred prior to the submission of a treatment plan and is thus not payable pursuant to s.38(2).
29The applicant did not provide any reply submission. Neither party submitted a treatment plan, nor did the applicant submit that there was any treatment plan for this claim. Given that no treatment plan was submitted and denied, I find this claim is not properly before the Tribunal.
Issue 2: Is the applicant entitled to interest for any overdue payment of benefits?
30In view of my findings above, I find the applicant is not entitled to any interest.
Issue 3: Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
31The applicant submitted that the respondent unreasonably withheld payments by only considering the IE reports in its denial of the respective treatment plans and costs of examinations, and by turning a blind eye to an “abundance of medical evidence” in its possession. The applicant therefore submitted that an amount of up to 50 percent with interests on all amounts owing should be awarded pursuant to s.10 of Reg 664.
32As I have found the applicant is not entitled to any of the benefits claimed for the reasons outlined above, I also find that she is not entitled to any award.
FINDING & ORDER
33The applicant is not entitled to the benefits claimed and as such there is no interest owing. The applicant is not entitled to any award.
Released: September 10, 2019
Avvy Go Adjudicator
Footnotes
- While this issue was included in the Case Conference Order dated November 7, 2018, the respondent confirmed in its written submission that it formally recognized the applicant as outside of the Minor Injury Guideline at the case conference. The respondent confirmed that the remainder of the issues in dispute are as listed. In view of the respondent’s concession, I do not have to address this issue.
- 17-002973 v. Aviva Insurance Company, 2018 CanLII 76451 (ON LAT) at paras 27-31