Vesna Catic v. Aviva General Insurance, 2020 CanLII 103685

Citation: Catic vs. Aviva General Insurance, 2020 ONLAT 19-005572/AABS

Released Date: 12/11/2020

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:

Vesna Catic

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

VC, Applicant

Aurora Mancuso, Counsel

For the Respondent:

Aviva General Insurance, Representative

Joy Kohli, Counsel

HEARD:

By way of written submissions

OVERVIEW

1V.C. was injured in an accident on July 15, 2016 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').¹ Aviva denied the benefits on the basis that they were not reasonable and necessary. V.C. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2Is the cost of examination expense in the amount of $2,055.33 for a psychological assessment, recommended by All Health Medical Centre in a treatment plan (“OCF-18”) submitted November 15, 2016, denied on June 5, 2017, reasonable and necessary?

3Is V.C. entitled to interest on any overdue payment of benefits?

4Is V.C. entitled to an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?

FINDINGS

5I find V.C. is not entitled to the OCF-18 in the amount of $2,055.33 for a psychological assessment as it is not reasonable and necessary. As such, no interest is payable.

6V.C. is not entitled to an award under Ontario Regulation 664.

DISCUSSION

Motion – V.C.’s Reply Submissions

7On May 27, 2020, Aviva filed a Motion seeking an order to strike V.C.’s reply submissions. Aviva submits that V.C. has restated her position on the OCF-18s and the special award claim. Further, it argues that V.C. has tendered new evidence and case law to bolster her position set out in her initial submissions. Aviva’s position is that V.C. is attempting to split her case.

8In response, V.C. submits that she has not introduced new issues in her reply submissions and that same only responds to the matters raised by Aviva. V.C. further submits that there is no prejudice to Aviva arising from the Reply Submissions; that should any prejudice exist, Aviva may seek permission from the Tribunal to file sur-Reply Submissions to cure any prejudice.

9Given my finding that the disputed OCF-18 is not reasonable and necessary and that V.C. is not entitled to an award, I decline to grant Aviva’s motion.

ANALYSIS

Is the psychological assessment reasonable and necessary?

10Sections 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 an accident. V.C. bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

11Section 38(8) requires an insurer to, within 10 business days after receipt of a treatment plan, provide the applicant with notice of the goods and services it agrees to pay for and those which it will not. It must also give medical and all other reasons for its decision. If an insurer fails to fulfill this obligation, section 38(11)2 entitles the insured to the goods and services related to the period starting on the 11th business day after receipt of the treatment and assessment plan, and ending on the day the insurer provides a compliant notice.

12V.C. argues that she is entitled to the disputed treatment plan for the cost of examination for two reasons. First, she argues that Aviva failed to comply with its obligation and provide proper notice with medical reasons under s.38(8). Second, she argues that the cost of examination is reasonable and necessary as a result of her accident-related injuries.

13In its submissions, Aviva concedes that its denial, dated February 20, 2017, was delivered to V.C. past the 10-day period under s. 38(8) and agrees that V.C. is entitled to payment for any treatment incurred during the period before it cured the defect. In response, V.C. argues that Aviva’s breach of the provisions of s. 38(11) result in mandatory consequences and that she is not required to establish that the OCF-18 is reasonable and necessary. I partially agree. Contrary to V.C.’s position, Aviva is only prohibited from relying on the MIG for denying this specific OCF-18 as a result of its non-compliance.² However, Aviva is only required to remit payment for treatment incurred during the defective period.

14With regards to the late denial and what has been incurred, V.C.’s submissions are silent on what was incurred during the period of Aviva’s non-compliance. Similarly, her submissions do not indicate whether she incurred any of the OCF-18. Consequently, no amounts are payable as a result of Aviva’s non-compliance with s. 38. Thus, I must determine if the OCF-18 is reasonable and necessary.

15V.C. submits that there is sufficient evidence to suggest that she suffers from a psychological impairment as a result of the accident. V.C. further submits that she continues to suffer from anxiousness while driving and as a passenger and, therefore, a psychological assessment to confirm she suffers a psychological impairment is reasonable and necessary. I find her position to be contradicted by the medical evidence.

16Post-accident, V.C. saw her family physician, Dr. Hussein, on numerous occasions. The records show that she received counselling on approximately three occasions. The clinic notes and records between July 18, 2016 and July 10, 2019 contain one entry of mindfulness and counselling. V.C.’s claim that the recommendation for mindfulness and counselling “appears to be a further treatment option for V.C.’s chronic pain and associated psychological sequalae of same”, is not supported by the evidence. There is no evidence in Dr. Hussein’s records of any psychological complaints or any recommendations from Dr. Hussein to see a psychological or psychiatric specialist.

17Aviva relies on its psychology assessor, Dr. Moshiri’s report in support of its denial of the OCF-18. V.C. reported that she had returned to work as an office administrator by November 1, 2016. V.C. denied any psychological complaints and denied suffering from depression. Dr. Moshiri questioned whether she required psychological attention, and she declined. Of note, regarding her activities of daily living, V.C. reported that, from a psychological standpoint, the accident had not affected her activities of daily living. Dr. Moshiri concluded that V.C. does not suffer from a formal psychological condition.

18The contradiction between V.C.’s argument regarding the OCF-18 and the scarcity of psychological complaints in Dr. Hussein’s records, compared to her reporting to Dr. Moshiri, weakens her argument that a psychological assessment is reasonable and necessary. This is further confirmed by her self-reporting to Dr. Moshiri that “physically I have been affected but not psychologically.” While I am sympathetic that she has experienced and reported some anxieties associated with driving, the evidence shows she has in fact returned to driving and believes that she can overcome her vehicular anxiety on her own.

19On the evidence, I am not persuaded that a psychological assessment is reasonable and necessary. In determining whether an assessment is reasonable and necessary, it must be kept in mind that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, V.C. still bears the onus of establishing on a balance of probabilities that the assessment she claims entitlement to is reasonable and necessary. To do so, V.C. must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment. I find that V.C. has failed to satisfy that onus.

Award

20Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person 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 has “unreasonably” withheld or delayed payments. V.C. bears the onus of establishing, on a balance of probabilities that Aviva acted unreasonably in withholding or delaying the payment of a disputed benefit.

21V.C. submits that in G.V.³, the Tribunal held that the insurer’s decision to remove the applicant from the MIG and pay the treatment plan in dispute between receipt of the applicant’s submissions and the writing of the insurer’s response was “questionable practice” and an unreasonable delay. Her position is that the circumstances of G.V. are similar to those of the subject proceeding in that Aviva has demonstrated an unreasonable delay and failed to adjust the claim in a timely manner. V.C. submits that the denial of the disputed OCF-18 was late, and the length of delay between the initial denial and subsequent approvals of OCF-18s dated March 31, 2017 and August 21, 2017 without reason, justifies an award of the allowable maximum.

22Regarding G.V., Aviva submits that the reconsideration decision of Associate Chair Batty held that the Tribunal made a significant error of law in ordering an award solely on the basis that Northbridge decided to pay the benefit shortly before the hearing. The Associate Chair found that the fact that Northbridge reversed its position shortly before the hearing was not sufficient to establish that it acted unreasonably in denying the benefit. I agree.

23While Aviva failed to meet its obligations in responding to the disputed OCF-18 in the manner set out in s. 38(8), I do not find this conduct warrants any levy against the insurer. Further, there is no evidence that on the 11th business day or thereafter, V.C. incurred the cost of examination expense prior to Aviva curing its deficient notice.

24In addition, there is no requirement in the Schedule for Aviva to provide reasons for approving treatment plans. It is not unreasonable for Aviva to follow the recommendations of regulated healthcare professionals in the absence of any demonstrable issues or errors in the recommendation.

25For these reasons, I do not find that Aviva’s conduct warrants an award in these circumstances.

CONCLUSION

26V.C. is not entitled to the OCF-18 for a psychological assessment. Therefore, no interest is payable as there is no outstanding balance of payment.

27V.C. is not entitled to an award.

28V.C.’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Zheng Cai v. Aviva, 2018 ONSC 5707 at paras. 19-21.
3. 3G.V. v. Northbridge General Insurance, 2017 CanLII 77389 (ON LAT) (“G.V.”) at paras 30 and 31.