D.S. v. Aviva Insurance Company of Canada, 2020 CanLII 14417
Tribunal File Number: 17-006952/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits.
Between:
D.S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Robert Jones, Counsel
HEARD In Writing: September 9, 2019
OVERVIEW
1The applicant, D.S. (the “applicant”) was injured in an automobile accident on September 16, 2015, and sought benefits from the respondent, Aviva Insurance Canada (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”). The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service when her claim for benefits was denied by the respondent.
2When the applicant initiated her claim for benefits, the claim was treated in accordance within the Minor Injury Guideline (“MIG”). The applicant was subsequently removed from the MIG and approved for further treatment beyond the $3,500. limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule. In its written submissions, the respondent states that the applicant has received $18,985.59 for chiropractic, massage therapy and chronic pain treatments. What is in dispute in this hearing is the cost of the examination for a psychological assessment totalling $2200 ($2000 for the assessment and $200 for documentary support activity). The respondent’s position is that the applicant has provided insufficient evidence to substantiate this claim. The respondent also asserts that the proposed fee for the assessment is not reasonable, questioning the amount of time charged for the assessment.
ISSUES TO BE DECIDED
3The issues to be decided by me are:
i. Is the applicant entitled to the cost of an examination in the amount of $2200 for a psychological assessment dated February 19, 2016?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award pursuant to s. 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
4In addition to the three issues set out above, the Case Conference Order dated June 3, 2019 identified a preliminary issue; namely, whether the applicant was barred from proceeding with the claim for the cost of the assessment because she did not attend at an insurer’s examination. However, in its written submissions for this hearing the respondent withdrew this preliminary issue.
RESULT
5Based on the totality of the evidence before me, I find as follows:
i. The applicant is entitled to the cost of an examination dated February 19, 2016 in the amount of $2200.
ii. Interest in accordance with the Schedule for any overdue payments of the above approved cost of examination is payable; and
iii. The applicant is not entitled to an award.
ANALYSIS
6The applicant was a front seat passenger in a vehicle which was struck from the rear on September 16, 2015. She was sent by ambulance from the scene of the accident to the hospital where she was assessed and diagnosed with whiplash. She was released from hospital with no treatment or care recommendations. She attended at her family doctor one week after the accident.
ISSUE 1: The Cost of the Examination
7On January 7, 2016, the respondent received an OCF18 treatment and assessment plan from Dr. Pilowsky proposing a psychological examination for a total amount of $2,200. In the documentation provided with the OCF18, Dr. Pilowsky stated that she conducted a brief clinical evaluation of the applicant who reported difficulties with sleep and with her energy levels, as well as a depressed mood and phobic symptoms when in a vehicle. Based on her evaluation, Dr. Pilowsky recommended that an assessment to ascertain whether or not psychological intervention would help the applicant manage psychological sequelae experienced as a result of the accident. She also recommended that the assessment take place as soon as possible to prevent the applicant’s psychological, cognitive and social functioning from deteriorating further.2
8By letter dated February 10, 2016, the respondent denied the claim, stating: “based on the medical documentation we have indicating your impairment is predominantly a minor injury” and the “maximum payable for a predominantly minor injury is $3,500 which has already been reached”. In that same notice, the respondent requested that the applicant attend for an insurer’s examination, namely, a psychological assessment. The applicant did not attend, but as noted above, the respondent has withdrawn the preliminary issue regarding non-attendance and has also removed the applicant’s claim from the MIG.
9The applicant did attend for a psychological assessment with Dr. Pilowsky, on January 21, 2016.