S. J. v. Aviva Insurance Canada, 2019 CanLII 76996

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:

S. J.

Appellant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Appellant: Jeton Memeti, Paralegal

For the Respondent: Leanne Zabudsky, Counsel

Heard: In Writing Hearing: February 19, 2019

OVERVIEW

1The applicant ("S.J.") was injured in an automobile accident ("the accident") on May 3, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When her claims for benefits were denied by the respondent ("Aviva"), S.J. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

2Aviva denied S.J.'s claims because it determined that there was no entitlement to an income replacement benefit, and that the proposed treatment for psychological services was only partially reasonable and necessary but not the remaining balance. S.J.'s position is the opposite.

3If S.J.'s position is correct, then I must address the amount of the income replacement benefit upon finding her entitled.

4If Aviva's position is correct, then a determination of the quantum of the income replacement benefit will be unnecessary.

5In addition, I must also address whether the balance of the medical treatment plan claimed is reasonable and necessary.

ISSUES

6The issues to be determined are as follows:

i. Is S.J. entitled to a weekly income replacement benefit for the period of January 17, 2017 to date and ongoing? a) If so, what is the amount of the weekly income replacement benefit that S.J. is entitled to receive?

ii. Is the remaining balance in the amount of $3,256.66, representing the unpaid amount from the initial treatment plan in the amount of $5,872.14 for psychological services, recommended by All Health Medical Centre, in a treatment plan submitted on February 22, 2017, and denied on October 24, 2017, reasonable and necessary?

iii. Is S.J. entitled to interest on any overdue payment of benefits?

iv. Is S.J. entitled to an award under Ontario Regulation 664² because Aviva unreasonably withheld or delayed payment of benefits?

FINDINGS

7For the reasons that follow, I find:

i. S.J. is not entitled to an income replacement benefit, therefore a finding of quantum is not necessary.

ii. The proposed treatment for psychological services is only partially reasonable and necessary and S.J. is not entitled to the remaining balance denied by Aviva.

iii. S.J. is entitled to interest on any overdue payment of benefits for psychological services.

iv. S.J. is not entitled to an award.

ANALYSIS

Issue (i): S.J. is not entitled to Income Replacement Benefit

8S.J. bears the burden of proving, on a balance of probabilities, that she is entitled to an income replacement benefit from January 17, 2017 to date and on-going. Based on the evidence before me, S.J. was employed as a cleaner.

9The test for entitlement to an income replacement benefit is set out in section 5(1)(i) of the Schedule, which states that the insurer shall pay an income replacement benefit if an insured person sustains an impairment as a result of the accident and "was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment". This is referred to as the "substantial inability" test.

S.J. does not suffer a substantial inability to perform the essential tasks of her employment as she did not sustain knee impairments as a result of the accident

10S.J. relies on various medical reports and evidence in support of her claim for an income replacement benefit. S.J. submits that due to her accident-related injuries, she is entitled to an income replacement benefit, as those injuries caused her to have a substantial inability to perform the tasks of her employment. According to the Disability Certificate³ ("OCF-3") of Family Physician Dr. Jan Zuchelkowski, S.J.'s injuries are listed as "neck strain, upper back strain, lower back strain, left knee contusion, and post-traumatic stress disorder". In a second OCF-3⁴, Dr. Zuchelkowski lists the injuries as, "neck strain, upper back strain, lower back strain, left knee contusion, depression and post-traumatic stress disorder".

11In denying S.J.'s claims, Aviva relies on the reports of its assessors⁵.

12In assessing S.J.'s physical injuries, Dr. Zalzal reviewed diagnostic imaging and opined the reports showed degenerative changes but no acute findings in the cervical, thoracic or lumbar spine. Dr. Zalzal found no "significant traumatic impairment". Dr. Zalzal did note significant arthritis in both knees, however, unrelated to the accident. Dr. Zulchelkowski's records also note the arthritic knees. Dr. Zalzal concluded the knee arthritis would interfere with S.J.'s ability to work.

13On May 10, 2017, S.J. saw Orthopaedic Surgeon, Dr. Getahun, regarding her left knee osteoarthritis. In his report, Dr. Getahun notes that S.J. has an "over 10-year medical history of medial knee pain". Dr. Getahun's report mentions a previous knee scope and a recommendation at that time for a knee replacement. Dr. Getahun diagnoses S.J. with osteoarthritis and recommends a knee replacement, however, the report does not indicate that the knee pain was caused by or exacerbated by the subject accident. I conclude that the knee pain was not caused by or worsened by the accident.

14On the contrary, the evidence shows her physical limitations are due to her arthritic knee(s), which is not accident-related. As a result, I find that S.J. is not entitled to an income replacement benefit, and therefore, I do not need to address the issue of quantum.

15In any event, based on the submissions and evidence presented by the parties, I am unable to determine what the essential tasks of S.J.'s employment as a cleaner are. Even if I were to have found that S.J.'s knee injuries were sustained as a result of the accident, S.J. would still have failed to meet her onus to establish entitlement to an income replacement benefit. I am unable to determine that S.J. was or is substantially unable to perform her essential employment tasks without any evidence of what those essential tasks are. Therefore, I find that S.J. is not entitled to an income replacement benefit, and the issue of quantum is moot.

S.J. does not suffer a substantial inability to perform the essential tasks of her employment due to psychological impairments sustained as a result of the accident

16S.J. directs me to the psychological report of Dr. Betty Kershner, Psychologist, All Health Medical Centre, dated October 25, 2016, which diagnoses S.J. with, "Adjustment Disorder with Mixed Anxiety and depressed mood, Generalized Anxiety and specific phobia – vehicular".

17Dr. Kershner's report notes S.J. was unable to work due to "sleep disturbance, impaired concentration, low energy, lack of interest and motivation, irritability and anger". Despite her complaints to Dr. Kershner about her psychological well-being post-accident, it does not appear that S.J. has in fact sought further psychotherapy treatment.

18In terms of S.J.'s complaints to Dr. Kershner of being "more irritable and tired", this appears to be in reference to S.J.'s family and not as a barrier to work. Dr. Kershner does not report how the irritability and tiredness are a barrier to S.J.'s ability to work.

19S.J. reported to Dr. Friesen she had not returned to work due to her physical pain. In addition, S.J. reported that she had not experienced any cognitive changes following the accident. S.J. denied significant problems with irritability and anger, and she also denied loss of interest as defined in the DSM-5⁶ criteria. Dr. Friesen subsequently diagnosed S.J. with, "Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood and Mild Specific Phobia, Situational Type (travelling in a vehicle)". Dr. Friesen concluded S.J. did not suffer a complete inability to perform the essential tasks of her employment. Again, neither Drs. Kershner or Friesen note any of the essential tasks of S.J.'s employment in their respective reports.

20I prefer the report of Dr. Friesen because S.J.'s subjective complaints are more in line with Dr. Friesen's objective results of her psychological impairments. Although both Drs. Kershner and Friesen conclude S.J. suffered accident-related psychological impairments, I do not find those impairments caused S.J. to suffer a substantial inability to complete the essential tasks of her employment. Further, S.J. has not sought any psychological treatment, which contradicts her complaints/concerns and desire for more treatment as reported to Dr. Kershner.

Issue (ii): The treatment plan for psychological services is partially reasonable and necessary

21Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.⁷

22S.J. has not satisfied her burden regarding the treatment plan. I am not persuaded by the evidence that the balance of the treatment plan is reasonable and necessary. Although Aviva partially approved funding for the treatment plan, S.J. has not directed me to any evidence that she has incurred any of the approved treatment.

The treatment plan rates are excessive

23The treatment plan's ("OCF-18") rates for services are above those set out in the Guideline⁸. The Guideline sets out a rate of $149.61 per hour for Psychologists and Psychological Associates except for catastrophic impairments. The OCF-18 indicates twelve sessions of "Individual Psychotherapy" at a rate of $200 per session in addition to "Communication with others" and "Treatment Planning" at a rate of $149.61 each. It is unclear why there is a $200 per hour charge, which is above the catastrophic impairment rate for psychological treatment. Further, I find the "communication with others" and "treatment planning" are additional fees that are not clearly explained in the OCF-18 as to their treatment goals.

24In its letter dated October 24, 2017, Aviva agreed to the following approvals of the treatment plan:

i. Psychotherapist services at $59.19 per hour;

ii. Psychologist supervisions services at $149.61 per hour; and

iii. Interpretation services to a maximum of $114.00 per session.

25Aviva contends that the transportation fees and interpretation fees are excessive. The transportation fees are set out by the Guideline and can be calculated accordingly. The interpretation fees are not set out in the Guideline, and I therefore disagree with Aviva's position that the $150.00 hourly rate "appears to be excessive". Unless Aviva can establish the interpretation services rate in accordance with the Guideline, the rate charged by "an accredited translation company" (as stipulated by Aviva in its October 24, 2017 letter in response to the OCF-18) will be determined by said accredited translation company. Despite this, the onus remains on S.J. to establish that the fees are reasonable and necessary.

26For the foregoing reasons, I find a partial approval of the treatment plan is reasonable and necessary. In addition, I find that none of the treatment has been incurred. S.J. is entitled to the 12 previously approved psychotherapy sessions, subject to the proper rates/calculations in accordance with the Guideline. As such, entitlement to the balance of the treatment plan is denied.

Section 38(3)(a) requirements

27Section 38(3)(a) of the Schedule states that the insured person must sign a treatment and assessment plan unless the insurer waives that requirement. The Schedule does not set out what constitutes a waiver. Section 38(3)(b) of the Schedule states that a treatment and assessment plan must be completed and signed by a regulated health professional.

28Section 38(2) states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) with some limited exceptions which are not applicable in this case.

29Despite its partial approval of the OCF-18, Aviva argues, in its submissions at paragraph 45, that the treatment plan is not payable as it was not signed by S.J. or the Health Practitioner in accordance with section 38(3).

30I find that Aviva implied that the signature requirement was waived and the OCF-18 was accepted as submitted by advising S.J. by letter dated October 24, 2017 that the treatment plan was partially approved.

31Further, there is no evidence to suggest that Aviva ever raised the section 38(3) issue prior to the hearing. According to the evidence before me, the first time Aviva mentioned section 38(3) non-compliance was in its Written Submissions of the Respondent.

32Considering the consumer protection nature of the legislation, and the fact that this procedural defense was raised at this late stage of the proceedings, and after Aviva took the aforementioned actions in responding to the OCF 18, I reject Aviva's argument.

33Furthermore, electronic submissions of treatment plans through HCAI became mandatory on February 1, 2011. Treatment plans submitted through HCAI require the provider to indicate that the treatment provider's electronic signature is on file and that the treatment plan has been reviewed by the provider. Once completed, the OCF-18 is to be printed and physically signed and a copy saved in the applicant's file at the facility. The HCAI system does not allow signed forms to be submitted to insurers at first instance. If Aviva was not consenting to an unsigned copy being received through HCAI and wanted to view the executed hardcopy on file at the clinic, it was incumbent upon it to request a copy upon receipt of the electronic version through HCAI. Aviva's failure to do so, only to raise the issue at this late stage of the proceeding, is inappropriate. Consistent with the consumer protection nature of the legislation, I also find that Aviva's conduct after receiving the treatment plan implies that the OCF18 was accepted as submitted, and Aviva waived the signature requirement.

34I find that the treatment plan complied with the requirements under section 38(3).

Issue (iii): S.J. is entitled to interest

35S.J. is entitled to interest on any overdue payment of benefits for psychological services in accordance with the Schedule.

Issue (iv) S.J. is not entitled to an award

36Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. S.J.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has "unreasonably" withheld or delayed payments.

37S.J. contends that Aviva's denials of the benefits that are the subject of this proceeding were not done in accordance with section 38(8) of the Schedule. Under section 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary.

38Further, S.J. submits that Aviva failed to review all the medical evidence in making its determinations which constitutes frivolous and vexatious behaviour. I disagree. S.J. did not provide me with any supporting evidence to show that Aviva completed an improper/incomplete review of the medical evidence. As such, I am not persuaded that Aviva acted frivolously or vexatiously.

39I have already found that S.J. is not entitled to an income replacement benefit, therefore Aviva cannot be found to have unreasonably withheld payment of the benefit.

40The treatment plan dated October 25, 2016 was submitted on February 22, 2017 and denied on March 2, 2017. Additionally, Aviva's denial provided S.J. with reasons why it considered the goods and services refused not to be reasonable and necessary. Thus, Aviva's denial was in accordance with section 38(8). Aviva has already partially approved the OCF-18, as discussed in para. 24, which I also found to be partially reasonable and necessary.

41S.J. has not satisfied her burden of proof to show that Aviva unreasonably withheld or delayed payments.

42There is no evidence before me that Aviva has established the threshold behavior required to justify an award claim under section 10. As a result, I find that Aviva has not unreasonably withheld or delayed payment for any benefit; therefore S.J. is not entitled to an award.

CONCLUSION

43S.J. is not entitled to an income replacement benefit.

44The OCF-18 of February 22, 2017 is partially approved, subject to the rates set out in the Guideline, for the psychotherapy sessions, transportation and interpretation services and form completion. As such, S.J. is entitled to interest on any outstanding payment of the benefit for psychotherapy sessions.

45S.J. is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2s.10, Regulation 664, R.R.O. 1990, Insurance Act
3. 3OCF-3 dated June 29, 2016
4. 4OCF-3 dated February 24, 2017
5. 5Orthopaedic assessment report by Dr. Zalzal dated November 21, 2016; Psychological assessment report by Dr. Friesen dated December 12, 2016
6. 6American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (Arlington, Virginia: American Psychiatric Association, 2013) at 286-287.
7. 7Scarlett v. Belair, 2015 ONSC 3635
8. 8Financial Services Commission of Ontario Professional Services Guideline - Superintendent's Guideline No. 03/14