A. R. v. Aviva Insurance Company, 2019 CanLII 14396

Decision

Date: 2019-01-18 Tribunal File Number: 18-000838/AABS Case Name: 18-00838 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:

A. R. Appellant(s)

and

Aviva Insurance Company Respondent

PANEL: Sandeep Johal, Adjudicator

APPEARANCES: For the Applicant: Lisa Bishop For the Respondent: Maia Abbas

HEARD in Writing on: August 27, 2018

OVERVIEW

1The applicant was injured in an automobile accident on March 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for medical benefits that were denied by the respondent on the basis that the medical benefits were not reasonable and necessary. The applicant disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of their dispute.

ISSUES TO BE DECIDED

3The following are the issues to be decided as set out in the case conference order dated July 17, 2018:

i. Is the applicant entitled to a medical benefit in the amount of $3,093.03 for psychological services recommended by Physiocare and Wellness Clinic, in a treatment plan submitted on June 15, 2017 and denied by the respondent on June 28, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $2,655.00 for physiotherapy services recommended by Physiocare and Wellness Clinic, in a treatment plan submitted on July 24, 2017 and denied by the respondent on August 8, 2017?

iii. Is the applicant entitled to receive payment for the cost of examination in the amount of $2,130.00 for a follow up psychological assessment, performed by Physiocare and Wellness Clinic, submitted to the respondent on May 19, 2017 and denied by the respondent on September 11, 2017?

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

v. Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

4In the applicant’s written submissions, she withdrew issue number ii above as the treatment plan was approved by the respondent; however, the issue of interest still remains an issue in dispute with respect to the treatment plan.

RESULT

5Based on the totality of the evidence before me, I find the applicant is entitled to:

a. A medical benefit in the amount of $3,093.03 for psychological services;

b. A cost of examination for a follow-up psychological assessment in the amount $2,130.00;

c. Interest in accordance with the Schedule for any overdue payments on the above approved treatment plan and cost of examination; and

d. Interest on issue number ii from paragraph 3 above in accordance with the Schedule.

6The applicant is not entitled to an award.

ANALYSIS

Is the applicant entitled to a medical benefit for psychological services in the amount of $3,093.03?

7The respondent agreed to pay for a portion of the treatment plan for psychological services. The remaining amount in dispute is $1,546.54.

8I find the applicant to be entitled to the treatment plan for psychological services for the outstanding amount of $1,546.54 for the following reasons.

9The applicant submits that the treatment plan is reasonable and necessary because it will assist her to find effective strategies for pain management, coping with her ongoing physical symptoms and managing its effect on her mood and capabilities. The goals of the plan include pain reduction and a return to activities of normal living which will be evaluated by cognitive behavioural strategies and ongoing assessment of changes and recovery.² In part 12 of the treatment plan, the 10 sessions of counselling, mental health and addictions include psychotherapy sessions.

10The reduction of pain for the applicant is, in my opinion, a reasonable and necessary goal and she is entitled to choose treatment that would help her do that. Psychotherapy as part of her counselling and mental health addictions in my opinion is reasonable and necessary as the applicant has been noted to have been feeling “more fatigued and it was imperative for the counselor to review pacing and breathing exercises and coping mechanisms.”³

11Furthermore, the respondent’s insurer examination (“IE”) assessor, Dr. Nemeth in the report dated July 15, 2018 also notes that the applicant has reported to her own doctor that she has not been driving on the highway and also reported neck and back pain every morning as well as headaches. Also that she had difficulty sleeping on her back because of the pain, she was taking muscle relaxants and that she did not feel well rested. She was also utilizing strategies to manage her anxiety.⁴

12Dr. Nemeth’s opinion did not change from her previous assessment that the applicant should continue with psychotherapy, treating anxiety related to driving in winter related conditions and addressing the applicant’s fear of driving in winter conditions by providing in-car treatment.

13In my opinion, psychotherapy would assist the applicant to find effective strategies for pain management, coping with ongoing physical symptoms and managing the effect on her mood and capabilities.

14As a result of the foregoing and the fact that she is still suffering from pain and anxiety, I find the treatment plan for psychological services to be reasonable and necessary. The applicant is entitled to the outstanding amount of $1,546.54 on the treatment plan for psychological services.

Is the applicant entitled to a cost of examination for a follow-up psychological assessment?

15Dr. Nemeth in her report dated August 28, 2017 reports that, in her opinion, the applicant has a fear of driving in the winter and that fear should be addressed with in-car treatment.⁵ She then continues and opines that a psychological assessment of the applicant is not required as it was already determined during the previous course of treatment by her medical practitioners. However, during the previous course of treatment, an in-car assessment was not recommended and it was not until Dr. Nemeth completed her own IE assessment of the applicant was she able to make that determination. To then suggest an assessment by the applicant is not required after Dr. Nemeth has provided one and made recommendations for treatment on behalf of the respondent does not seem like a persuasive opinion.

16I agree with the reasoning in Applicant v State Farm⁶ where the Adjudicator found that in determining whether an assessment is reasonable and necessary, it is relevant whether the respondent has chosen to arrange for their own assessment after being presented with the applicant’s assessment.⁷ If the respondent scheduled assessments upon receipt of the applicant’s request for their own assessment, that would appear to undermine its claim that the applicant does not require any further assessment and evaluation.⁸

17Furthermore, as mentioned above, the respondent’s own assessor found the applicant to have psychological issues that require further treatment and to deny the applicant her own assessment is not reasonable in my opinion. Without the assessment, the applicant’s medical practitioners and treatment providers cannot assess the type of services and treatment that would be required to adequately treat the applicant’s injuries.

18As a result of the above, I find the applicant to be entitled to the cost of examination for a follow-up psychological assessment.

Is the fee in the amount $2,130.00 charged for the psychological assessment reasonable?

19I find the cost of the psychological assessment in the amount of $2,130 to be reasonable for the following reasons.

20The respondent submits that if the assessment is deemed to be reasonable and necessary, then the fee for the assessment is not reasonable as the fee is not broken down into an hourly rate in order to determine whether it is in accordance with the Professional Services Guideline.⁹ Without an hourly breakdown, the respondent argues that it is unable determine if the fee exceeds the hourly rate or whether the proposed time is reasonable. The respondent also submits that there is no indication of who will be providing the service.

21The applicant has not provided any submissions with respect to the reasonableness of the fee.

22Section 38(8) of the Schedule states that within 10 days after receiving the treatment and assessment plan, the insurer shall give the insured person notice that lists, among other things, why the proposed cost of the treatment and assessment is not reasonable and necessary. The explanation of benefits provided to the applicant only refers to the IE doctor’s report that states the assessment was already approved and completed previously and therefore is not reasonable and necessary. However, the explanation of benefits makes no mention of the fee being unreasonable. The respondent has not raised the issue of the fee being unreasonable, other than for the first time for the purposes of this hearing.

23The respondent submits that it does not know who will be providing the services, however, in Part 11 of the treatment plan it lists the service provider to be Andrew Shaul and his Regulated College Registration Number and in part 12 it lists Andrew Shaul as the person who will be providing an “Assessment, mental health and addictions”.¹⁰

24The Schedule states the insurer shall not pay more than $2,000 for any one assessment or examination¹¹. The Schedule does not state that an hourly amount must be included for the purposes of section 25 in determining if the fee is reasonable. The Schedule states the “an insurer shall not pay more than $2,000 in respect of fees and expenses for conducting any one assessment or examination…”¹² (emphasis added).

25The treatment plan in question provides a description of the services to be provided as an “Assessment, mental health and addictions”, Dr. Andrew Shaul as the service provider, and then states “1” for the quantity which in my opinion would mean one assessment is being provided at a cost of $1,930 plus a documentation support activity fee of $200 for a total of $2,130. I find this to be reasonable. Part 12 does not have a column to list the number of hours, it only has a column for the quantity of that service to be provided.

26To accept the respondent’s submissions that the treatment and assessment plan should be denied as being unreasonable because the hourly rate was not listed would be a harsh result especially considering it is within the monetary limits of section 25(5)(a). Considering the purpose of the Schedule is consumer protection and remedial in nature and as a result of the above, I do not agree with the respondent’s position that the fee is unreasonable simply because it did not state the number of hours the assessment would take.

INTEREST

27The applicant is entitled to interest on the approved treatment plan and the cost of examination in accordance with the Schedule.

28With respect to the approved treatment plan for physiotherapy services listed as issue number ii in paragraph 3 above, I find that the respondent is liable to pay interest as of the date it was received by the respondent. The respondent’s IE assessor had enough information based on the applicant’s self-reporting and the IE assessor’s physical examination of the applicant to make that determination from the outset.

29The applicant submits that the treatment plan should not have been denied in the first place and interest is payable as of the date it was submitted to the respondent, being July 24, 2017.

30The respondent submits that it was not able to determine the necessity of the treatment plan until it received the applicant’s x-ray and MRI imaging documents on June 22, 2018. Those medical records found osteoarthritis in the applicant’s cervical spine.

31In my opinion, the applicant’s self-reporting and the respondent’s IE assessor’s physical examination of the applicant should have been enough to diagnose the applicant’s need for treatment. The x-ray and the MRI were not required to confirm the applicant’s pain from osteoarthritis as warranting treatment.

32The applicant reported to the IE doctor, Dr. Chaudhry, that her complaints with respect to her cervical spine were “intermittent aching sensation over the posterolateral sides of her neck, which radiates into the periscapular region bilaterally and the “intensity of the pain was rated as a 9 out of 10”. She further reported that she had “numbness in the palms of her hands and the soles of her feet.”¹³

33During the physical examination of the applicant’s cervical spine conducted by Dr. Chaudhry, he notes that “there was cervical spinous and bilateral cervical paraspinal muscle tenderness upon palpitation.”¹⁴

34Dr. Chaudhry goes on to summarize that the applicant does not have any impairment and she demonstrated full range of motion and full strength and she has no neurological or radicular findings.¹⁵ He opines that the treatment plan is not reasonable and necessary as he does not see any further benefit from institutional rehabilitation but then goes on to state that “I would encourage a home based self-motivated program that focuses on range of motion and strength training of the neck and shoulder musculature.”¹⁶ I do not agree with the IE assessment given the inconsistencies in Dr. Chaudhry’s report. He finds the treatment plan not to be reasonable and necessary on the basis that the applicant has no impairment and full range of motion and strength. Yet, Dr. Chaudhry noted the applicant’s muscle tenderness and recommended exercises to increase range of motion and strength to her cervical spine area and shoulder. Given the inconsistencies of the IE doctor’s report and my finding that the applicant’s x-ray and MRI were not required to establish the need for physiotherapy, I find that interest is payable in accordance with the Schedule.

35As a result of the above, I find that the respondent is liable to pay interest on the physiotherapy treatment plan in the amount of $2,665 in accordance with the Schedule.

AWARD

36The applicant submits an award should be imposed against the respondent for its improper withholding of the benefits pursuant the Schedule and the policy and consumer protection objectives of insurance law.

37For the following reasons, the applicant’s request for an award is denied.

38Regulation 664 under the Insurance Act¹⁷ states that the Tribunal may award a lump sum of up to 50 per cent of the amount to which the applicant was entitled if the respondent unreasonably withheld or delayed the payment of benefits.

39However, the applicant has not provided any submissions or evidence of unreasonable withholding or delayed payment of benefits by the respondent. The fact that the Tribunal has found in the applicant’s favour for the payment of the benefits is not in and of itself evidence of unreasonably withholding or delaying of the payment of benefits.

40The onus is on the applicant to prove on a balance of probabilities and the applicant has not done so in this case; therefore no award is payable.

ORDER

41For the reasons outlined above, I find that the applicant is entitled to:

a. A medical benefit in the amount of $3,093.03 for psychological services;

b. A cost of examination for a psychological assessment in the amount $2,130.00 and

c. Interest in accordance with the Schedule on the above approved treatment plan and cost of examination.

d. Interest on issue ii from paragraph 3 above in accordance with the Schedule.

42The applicant is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2OCF-18 dated May 19, 2017, Applicant Book of Exhibits at page 153.
3. 3Psychological session 11 note dated April 28, 2017, Applicant Book of Exhibits at page 89.
4. 4Dr. Rhonda Nemeth IE Report dated August 28, 2017, Respondent Hearing Submissions Tab 11 at page 131-132
5. 5Ibid at page 123.
6. 616-004375 v State Farm Mutual Automobile Insurance Company, 2017 CanLII 82014 (ON LAT).
7. 7Ibid at para 26.
8. 8Ibid at para 27.
9. 9Financial Services Commission of Ontario Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014.
10. 10Respondent Book of Authorities (OCF-18) at page 75.
11. 11Section 25(5)(a) of the Schedule
12. 12Section 25(5)(a) of the Schedule
13. 13Hearing Submissions of the Respondent Tab 15 at page 143.
14. 14Supra note 13 at page 144.
15. 15Supra note 13 at page 145.
16. 16Ibid.
17. 17Section 10, R.R.O. 1990, Reg. 664: Automobile Insurance