G.G. v. Certas Home and Auto Insurance Company, 2019 CanLII 119771
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:
G.G.
Appellant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
For the Appellant: Mireille Dahab, Counsel
For the Respondent: Thomas Elliott, Counsel
Heard: In Writing: Hearing: July 15, 2019
OVERVIEW
1The applicant, (“G.G.”), was injured in an automobile accident on July 25, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Certas Home and Auto Insurance Company (“Certas”), the respondent.
2Certas denied a treatment plan for psychological services. As a result, G.G. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3On March 10, 2017, Certas advised G.G. that the treatment plan was denied based on an insurer examination (“IE”) psychiatrist report.1 Certas maintained that G.G.’s request for psychological treatment was not reasonable and necessary. Certas contends that G.G. did not suffer any psychiatric impairment as a result of the subject accident.
ISSUES
4The issues to be decided are as follows:
i. Is the medical benefit in the amount of $4,190.72 for psychological services, recommended in a treatment plan dated February 13, 2017, and denied on March 10, 2017, reasonable and necessary?
ii. Is G.G. entitled to interest for the overdue payment of benefits?
iii. Is G.G. entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5I find that G.G. is not entitled to the treatment plan in dispute as he has failed to prove on a balance of probabilities that it is reasonable and necessary. G.G. is also not entitled to interest or an award and the application is dismissed.
BACKGROUND
6On or about June 10, 2012, G.G. was involved in a previous motor vehicle accident, wherein he sustained both physical and psychological injuries.
7Approximately one month before the subject accident, G.G. was still being assessed for injuries sustained in the June 2012 accident by his previous insurer, Aviva Insurance Company.
8On June 28, 2016, G.G. underwent an assessment2 conducted by the assessor of his choice (“section 25 assessment”), Dr. Andrew Shaul, related to the June 2012 accident. Dr. Shaul diagnosed G.G. with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder as a result of the June 2012 accident.
9On December 6, 2016 G.G. underwent a section 25 psychological assessment by Dr. Mehdi Lotfalizadeh related the subject July 25, 2016 accident, and in support of the disputed treatment plan. G.G. "denied any pre-existing history of psychological or psychiatric problems”. G.G. stated that “before the subject 2016 MVA, he had never consulted a mental health professional for individual therapy or counselling".
ANALYSIS
10The February 13, 2017 treatment plan by Dr. Lotfalizadeh, Psychologist, was for psychological counselling. It sought funding for sixteen 1.5-hour sessions, a progress report, and the cost of the form completion. The goals of the treatment plan were to improve coping with pain, addressing depressive symptomatology, focus on the anxious and traumatic reactions to the MVA, and a return to activities of normal living”.
11Dr. Lotfalizadeh provided an additional attachment to this treatment plan in which he diagnoses G.G. with “Major Depressive episode (single episode) moderate and Specific phobia situation type, (motor vehicles)”. Dr. Lotfalizadeh concluded that G.G scored in the moderate range on the Beck Depression inventory-II test and in the mild range for the Beck Anxiety inventory. Despite the moderate/mild findings, Dr. Lotfilazadeh recommends 16 sessions of treatment.
12Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
13G.G. bears the onus of proving his entitlement to the claimed psychological service is both reasonable and reasonable on a balance of probabilities.3 For the following reasons, I find that G.G. has failed to meet his onus for the treatment plan in dispute.
Medical Benefit: Psychological Services
14G.G. argues that the psychological treatment is reasonable and necessary because he has chronic pain. To establish this, G.G. relies on the clinical notes of his family physician, Dr. Avanessy, the section 25 assessment of Ida Radan, Registered Psychotherapist (under supervision of Dr. Lotfilazadeh), and the report4 of Dr. Matthew Cooper, M.D., who is presented as a chronic pain specialist. In addition, G.G. relies on the psychological report5 of Dr. Andrew Shaul. G.G. submits that chronic pain has a psychological component, therefore the treatment plan is reasonable and necessary. Dr. Avanessy makes a diagnosis of ‘chronic pain’, which G.G. submits makes the treatment plan reasonable and necessary. Further, because the report by Dr. Cooper, also points to a diagnosis of chronic pain, G.G. submits the treatment plan is reasonable and necessary.
CHRONIC PAIN
15For the reasons below, I did not find the evidence submitted by G.G. to establish that he has chronic pain and/or that the psychological treatment in dispute is reasonable and necessary.
Dr. Cooper/Dr. Shaul – section 25 assessments
16Dr. Cooper’s report is based on injuries/impairments sustained in the June 2012 accident, and not the subject accident. There is no mention of any psychological impairments suffered as a result of the subject accident. Further, Dr. Cooper’s report is based mainly on the physical pain complaints G.G. suffered from the 2012 accident, with minimal focus on any psychological impairment. Although Dr. Shaul’s report is mainly a psychological impairment-based report, again, it is in relation to the 2012 accident.
17Both Dr. Cooper and Dr. Shaul’s reports were conducted prior to the subject accident. As such, I place very little weight on the reports of Drs. Cooper and Shaul, as any complaints of accident-related psychological impairment, were not as a result of the subject accident. In addition, I note that there was no curriculum vitae provided to confirm Dr. Cooper’s training or standing as a chronic pain specialist. Which I find puts in to question the validity of Dr. Cooper’s chronic pain report and Dr. Cooper’s knowledge as a chronic pain specialist.
Dr. Avanessy – clinical notes and records
18In Dr. Avanessy’s notes, chronic pain is mentioned at a visit on November 2, 2018. There is no mention of any psychological complaints as a result of the subject accident during the August 22, 2016 or November 2, 2018 visits. Subsequent visits in between that time period also have no reference to any accident-related psychological complaints. Almost every visit between August 2016 and November 2018 note physical pain complaints.
Ms. Radan – section 25 assessment/treatment
19Ms. Radan’s assessment of December 18, 2016, notes that G.G. has pain, headaches, restless sleep and occasional nightmares about the accident. Ms. Radan also conducted the Beck Depression inventory-II test resulting in a moderate rating and in the mild range for the Beck Anxiety inventory (the rating provided in Dr. Lotfilazadeh’s treatment plan). A Patient Pain Profile test was conducted, which found, an above average score for a chronic pain sufferer, and average score for anxiety and below average for somatization.
20G.G. attended three sessions with Ms. Radan on March 28, 2017, May 16, 2017 and June 6, 2017. It appears these were sessions to provide G.G. with psychological treatment, however, there is no evidence to show the treatment was helpful in providing G.G. with any relief. I note that there was psychological treatment that was subsequently approved after the Tribunal application was received, but it is unclear whether the three sessions with Ms. Radan were a part of the approved treatment, or whether any further treatment was sought after Certas approved psychological treatment.
Dr. Debow – section 44 assessment
21In support of its position that the treatment plan is not reasonable and necessary, Certas relies on its assessor, Dr. Debow. Dr. Debow provided two reports, the first, January 11, 2017, and a second report on June 28, 2017. In his initial report, Dr. Debow assessed G.G. and based on objective testing opined that G.G. did not suffer any accident-related impairment as a result of the 2016 accident. Dr. Debow opined that G.G. “has no evidence in keeping with major depressive episode, having some subject difficulty with concentration but scoring within normal limits...”. In concluding, Dr. Debow notes, “no further treatment from a psychiatric perspective as a direct result of the accident is reasonable. He is directed to continue in follow-up therapy with his family physician for his subjective issues”.
22My finding that the treatment plan is not reasonable and necessary is based on the following:
(i) The Cooper and Shaul reports are not in relation to the subject accident and thus do not support the claim for psychological treatment in relation to the 2016 accident;
(ii) The purpose of the Cooper and Shaul reports was to assess G.G.’s condition after the 2012 accident and determine from a physical and/or psychological perspective, what treatment was reasonable and necessary for the injuries/impairments sustained in the 2012 accident. Therefore, I give no weight to the Cooper and Shaul reports in assessing the reasonableness and necessity of the treatment plan currently in dispute;
(iii) I am persuaded by the lack of psychological complaints to Dr. Avanessy during the 2016 to 2018 post-accident period, that G.G. did not suffer significant accident-related psychological impairment that would require further facility-based treatment; and
(iv) Despite the sessions with Ms. Radan and the report, I am not persuaded that the disputed treatment plan is reasonable and necessary. G.G. at one point stopped attending sessions with Ms. Radan and was not following the recommended ‘homework’ that Ms. Radan assigned in order to assist with the recovery process. Further, despite his self-reporting of not being able to concentrate, G.G. was able to write (and pass) the required realtor exam and successfully complete his realtor program.
23For the reasons stated above, I find the treatment plan is not reasonable and necessary.
INTEREST
24Because I have found that there are no benefits that are overdue, no interest is payable.
AWARD
25Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
26As I have found in that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.
CONCLUSION
27For the reasons outlined above, I find:
(i) G.G. is not entitled to the treatment plan for psychological treatment because he has failed to prove that it is reasonable and necessary on a balance of probabilities;
(ii) G.G. is not entitled to an interest or an award; and
(iii) The application is dismissed.
Released: November 1, 2019
Derek Grant
Adjudicator
Footnotes
- January 11, 2017 section 44 psychiatric assessment report by Dr. Stanley Debow.
- Psychological report dated July 3, 2016
- Scarlett v. Belair Insurance, 2015 ONSC 3635, paras. 20-24.
- Chronic Pain Assessment of Dr. Matthew Cooper dated July 4, 2016
- Psychological assessment report dated June 28, 2016