S.P.F. v. Aviva General Insurance, 2020 CanLII 12781

Citation: SPF vs. Aviva General Insurance, 2020 ONLAT 18-010856/AABS

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. P. F.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For S.P.F.: George Bougadis, Counsel

For the Respondent: Mohamed R. Hashim, Counsel

HEARD: In Writing August 19, 2019

OVERVIEW

1The applicant (“S.P.F.”) was involved in an automobile accident on June 29, 2016 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Specifically, S.P.F. is seeking funding for medical benefits.

2The respondent Aviva contends that S.P.F. has not proven his entitlement to the claimed benefits.

ISSUES

3The issues in dispute were identified and agreed to as follows:

a. Is the medical benefit in the amount of $948.05 for psychological treatment, recommended by Dr. Bonnie Macdonald in a treatment plan submitted on October 7, 2016, and denied by the respondent on November 23, 2016, reasonable and necessary?

b. Is the medical benefit in the amount of $5,950 for psychological treatment, recommended by Dr. Kurzman in a treatment plan submitted January 3, 2017, and denied by the respondent on June 27, 2017, reasonable and necessary?

c. Is S.P.F. entitled to interest on any overdue payment of benefits?

FINDING

4Based on a review of the evidence, I find that S.P.F. is not entitled to the claimed benefits.

ANALYSIS

5Sections 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. S.P.F. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.¹

6For the reasons that follow, I find that S.P.F. has not met his onus to establish that the treatment plans are reasonable and necessary. For example:

a. To date, Aviva has approved $5,198.84 in medical benefits. However, S.P.F. has only consumed $1,329.00 worth of treatment. There remains an outstanding balance of $3,869.84 of approved, but not incurred, treatment. To date, S.P.F. has not incurred the balance of the approved treatment. A collateral benefits policy with Great West Life was noted, but a policy number was not provided. No disability certificate was ever submitted for this claim.

b. On November 21, 2016, Psychologist Dr. Prendergast prepared a section 44 psychological assessment report. During the assessment, S.P.F. complained of pain in his neck and reported headaches. S.P.F. acknowledged that he is not experiencing any significant or substantive disruption. S.P.F. acknowledged that he is independent in self-care and has returned to his home making and care-giving responsibilities. S.P.F. has also returned to coaching soccer although he acknowledges that he has not returned to playing soccer at this point (attributing this avoidance to pain). He said he has also returned to driving and has continued with his employment having missed only 3 days post-accident.

c. On July 15, 2019, Psychologist Dr. Curt West prepared a neuropsychological assessment IE report. During the assessment, S.P.F. disclosed returning to work with "no limitations or restrictions with regards to employment attributable to factors of a mental health or neurocognitive etiology."

d. Of significant note, S.P.F. denied a desire for psychotherapy counselling. S.P.F. denied any changes with respect to suicidal ideation, homicidal ideation, or perceptual disturbances. S.P.F. reports that he has not been participating in any type of counselling/psychotherapy, nor has he been utilizing any psychotropic medications, nor did he voice a need or desire for either.

e. Dr. West also reviewed medical records² provided and noted S.P.F. was ambulatory at the scene of the accident with no loss of consciousness. Multiple Glasgow Coma Scale scores of 15 were also identified. On testing, S.P.F. scored in the "Above Average" level of Intellectual Functioning, and also returned scores of "intact and unimpaired" pertaining to Verbal and Non-Verbal memory. S.P.F. also scored "Above Average" in Speech, Language, and Related Verbal Functions, as well as in Visuospatial Processing and Nonverbal Functions. With respect to S.P.F.'s attention, further "Above Average" results were scored. As it pertained to symptom magnification, Dr. West noted S.P.F. failed the control testing, and it was possible that S.P.F. may have exaggerated some of his symptoms.

f. Dr. West also conducted a psychological assessment of S.P.F. and prepared an IE report dated July 15, 2019. On testing, S.P.F.'s scores suggested symptom magnification. On review, Dr. West concluded that S.P.F. was not evidencing any clinically significant symptoms of mental illness. No diagnosis was rendered. S.P.F. was said to have reached maximum medical improvement, and no ongoing intervention was recommended.

7Based on S.P.F.’s self-reporting and the reports of the section 44 assessors, I find that S.P.F. has not established his entitlement to the treatment plans. I find that none of S.P.F.’s self-reporting or the section 44 assessments suggest psychological treatment is needed. Further, if S.P.F. does require further psychological treatment, he still has approximately $3,870.00 of approved, and not incurred, funding available for treatment.

8My finding that the treatment plans are not reasonable or necessary are further supported by the following:

a. The records of S.P.F.'s family doctor, Dr. Samir Antowan, are referenced at Tabs 7 and 12 of S.P.F.'s submissions. There are only two notations; one dated October 13, 2016, and the other dated May 18, 2018. It does not appear that S.P.F. required accident-related medical attention, including psychological treatment. Should the need for psychological treatment arise, S.P.F. can avail himself of the $3,870.00 remaining for approved treatment.

b. S.P.F. returned to work, voiced a lack of desire for treatment, has not consumed the remaining approved treatment amount, and returned test scores indicative of a functional person. These factors are not indicative of an individual who appears to want or require psychological treatment. I agree with Aviva that the disputed treatment plans are not reasonable or necessary.

9I find that the medical evidence is not supportive of establishing entitlement to the treatment plans. S.P.F. has not satisfied his burden that the treatment plans are reasonable and necessary. I am persuaded by the evidence that S.P.F. has not sought or required a significant amount of psychological treatment. Further, he has not expressed a desire for psychological treatment.

10A treatment plan, without any supportive persuasive evidence is not enough to establish that a treatment plan is reasonable or necessary. As such, I find that the treatment plans are not reasonable or necessary.

AWARD

11S.P.F. did not raise the issue of award in the Tribunal Application. There was no formal request to add this issue. Instead, S.P.F.’s counsel raised the argument in the written submissions. S.P.F. provides no evidence in support of an award pursuant to s. 10 of Regulation 664 of the Insurance Act.

12Since I found that no benefits are payable to S.P.F., Aviva cannot be found to have unreasonably withheld or delayed payment. As a result, an award is not warranted in the circumstances of this case.

CONCLUSION

13S.P.F. is not entitled to payment for the treatment plans claimed in this application. S.P.F. is also not entitled to an award. His application is dismissed.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635
2. 2Ambulance report and hospital records