B. H. X. v. Aviva General Insurance, 2020 CanLII 61462

B. H. X. vs. Aviva General Insurance, 2020 ONLAT 19-002556/AABS

Citation: B. H. X. vs. Aviva General Insurance, 2020 ONLAT 19-002556/AABS

Released: July 31, 2020

Tribunal File Number: 19-002556/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:

B. H. X.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yu Jiang

For the Respondent: Maia Abbas

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on October 27, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain medical benefits, and in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues in dispute in this hearing are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period spanning from May 8, 2017 to October 27, 2017?

2. Is the applicant entitled to the cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Perfect Choice Psychological Service Inc. in a treatment plan dated January 11, 2017?

3. Is the applicant entitled to a medical benefit in the amount of $250.00 for expenses related to a plastic surgery consultation with Dr. C. Hong, submitted October 25, 2017?

4. Is the applicant entitled to interest on overdue payments?

5. Is the applicant entitled to an award pursuant to section 10 of Ontario Regulation 664?

RESULT

3The psychological assessment is reasonable and necessary for the applicant’s accident-related injuries.

4The applicant is not entitled to a non-earner benefit, the plastic surgery consultation expense, interest, or an award.

OVERVIEW

5The applicant was the passenger of a vehicle involved in a head-on collision. The impact of the collision caused him to strike his head on the interior of the vehicle, causing lacerations. He was transported from the scene of the accident to the hospital by ambulance and was x-rayed and examined there. Imaging showed no evidence of acute traumatic brain injury or fracture. The applicant’s lacerations were sutured, and he was released from care. A few days following the accident, he commenced treatment for his injuries at Perfect Physio & Rehab Centre.

6The applicant initially received treatment within the framework of the Minor Injury Guideline (“MIG”), which the respondent funded. He was later removed from the MIG, and no longer subject to the $3,500.00 funding limit on treatment, following a plastic surgery IE report dated February 5, 2019 and a psychological IE report dated March 26, 2019.

7Prior to his removal from the MIG, the applicant sought approval for a psychological assessment and reimbursement for the cost of a plastic surgery consultation. These items were denied by the respondent and are listed as issue 2 and 3, respectively. The applicant also seeks payment of a weekly non-earner benefit in addition to the medical benefits in dispute.

8The onus is on the applicant to prove his entitlement to the disputed benefits on a balance of probabilities.

ENTITLEMENT TO A NON-EARNER BENEFIT

9Upon review of the submissions and evidence, I find the applicant has failed to prove he suffered from a complete inability to carry on a normal life and, thus, is not entitled to a non-earner benefit as claimed.

10Pursuant to section 12 of the Schedule, an insured person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for a NEB. The test for a NEB is outlined in Heath v. Economical Mutual Insurance Company;¹

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

11Heath also holds that, in order to qualify for a NEB, the changes in an insured’s life must be of such significance to continuously prevent them from engaging in substantially all activities in which they engaged before the accident.²

12The applicant submits he suffered a complete inability to carry on a normal life as a result of the accident because, following the accident, he could not genuinely engage in his pre-accident activities. The respondent submits that, according to his self-reporting in assessments, the applicant appears to be more active than before the accident. I agree with the respondent.

13The applicant’s evidence is devoid of any compelling account of his pre-accident activities and his ability, or rather inability, to participate in those activities after the accident. The disability certificate dated October 29, 2016 supports his claim but includes no evidence of his pre-accident activities. The clinical notes and records (“CNRs”) from Dr. P. Pang, family physician, fail to explain any changes in the applicant’s functionality. The June 11, 2017 psychological assessment pre-screen report by J. Su, psychotherapist, noted the applicant had difficulty with his housekeeping and home maintenance activities; however, this is inconsistent with his accounts in the neurological, psychological, orthopaedic, and occupational therapy IE reports, all dated February 27, 2017. The IE reports, particularly the occupational therapy report of S. Javasky, note the applicant reported independence with personal care and household chores, albeit at a slower pace. The applicant claims he partially withdrew from post-secondary education due to his accident-related injuries, but no school records were submitted to substantiate this.

14The evidence shows the applicant is more active following the accident. As noted by the respondent, the applicant maintained his independence with personal care, continued to be responsible for the preparation of his own meals and completing household chores such as laundry and garbage disposal. He continued with his education and graduated in August 2018 and found employment in October 2018.

ENTITLEMENT TO THE PSYCHOLOGICAL ASSESSMENT

15For the following reasons, I find the disputed psychological assessment is reasonable and necessary for the applicant’s accident-related injuries. However, the applicant has not incurred the cost of the assessment and I choose not to deem it incurred. The applicant is not entitled to payment for the assessment as a result of these findings.

16The applicant claims entitlement to the disputed psychological assessment on the basis that he is no longer subject to the MIG and because the psychological assessment was denied because the it is excluded from the MIG. He also submits that his medical record reveals his continued struggle with everyday tasks as a result of physical, psychological and cognitive difficulties.

17The respondent submits the applicant has failed to meet his onus to prove the assessment is reasonable and necessary. Further, it submits the assessment is duplicative in that the applicant requested and received funding for another psychological assessment plan dated December 21, 2018 and incurred with a report dated April 19, 2019.

18The applicant’s medical record shows evidence of psychological injuries which require investigation, necessitating the disputed psychological assessment. The applicant submits an OCF-3 completed by Dr. G. Palantzas, chiropractor, dated October 29, 2016 which notes psychological symptoms including phobic anxiety disorder, emotional shock and stress, and nonorganic sleep disorders. Recognizing that psychological injuries are outside of the scope of a chiropractor, my decision also relies on the provisional psychological consultation report by J. Su and Dr. S. McDowell, dated January 11, 2017. The report is based on an interview with the applicant and notes the applicant presented with symptoms commonly found in individuals suffering from post-accident psychological impairment. It recommended a full psychological assessment to determine the applicant’s clinical diagnosis and psychological treatment needs.

19The psychological IE report by Dr. C. Bradbury, dated February 27, 2017 (“the Bradbury report”), is outweighed by the applicant’s evidence and the psychological IE report of Dr. D. Cohen, dated March 26, 2019 (“the Cohen report”). The findings in the Bradbury report are based on the results of a clinical interview and psychometric testing. It found the applicant’s psychological concerns at the time were mild and sub-clinical but noted that any worsening of his symptoms may warrant re-evaluation. The applicant was re-evaluated for the Cohen report and it was determined that the applicant’s emotional state deteriorated since the Bradbury report and there was sufficient evidence to indicate the applicant exhibits symptoms of anxiety and depression consistent with a clinically significant loss or abnormality of affective control attributed to the accident. The conclusion in the Bradbury report does not rule out any psychological injury and, when viewed together with the October 29, 2016 OCF-3, the provisional psychological consultation dated January 11, 2017, and the Cohen report, it suggests the applicant has psychological symptoms which warrant a full assessment.

20The completion of a subsequent psychological assessment does not affect my finding that the disputed psychological assessment is reasonable and necessary. My decision is based on the applicant’s needs at the time of the proposed treatment plan and the evidence submitted afterwards.

21Although the psychological assessment plan is reasonable and necessary for the applicant’s accident-related injuries, I find he is not entitled to payment for it because it was not incurred. Pursuant to section 25(1) of the Schedule, the applicant is entitled to expenses incurred by or on behalf of the applicant for the reasonable fees charged by a health practitioner for the preparation of a treatment plan pursuant to section 38 of the Schedule. The applicant has not incurred the costs associated with this assessment and, therefore, is not entitled to payment for it.

22I choose not to deem the assessment as incurred pursuant to section 3(8) of the Schedule because funding for it was not unreasonably withheld or delayed. The respondent denied funding for the psychological assessment due to the Bradbury report and a lack of information on the applicant’s psychological health. These are legitimate reasons to deny a benefit despite later being overruled by other evidence. The respondent sought a regulated healthcare professional for an opinion on the applicant’s psychological health and relied on that opinion. There is no obvious error within the Bradbury report that would make it unreasonable to follow the recommendations in it.

ENTITLEMENT TO THE PLASTIC SURGERY CONSULTATION FEES

23I find the applicant is not entitled to payment of the plastic surgery consultation fee because it was incurred prior to the 11th business day following receipt of the treatment and assessment plan.

24The applicant claims entitlement to $250.00 for a consultation with Dr. C. Hong, plastic surgeon. The applicant submits consultation is akin to an examination under section 25 of the Schedule, is within the funding limit on any one assessment or examination and is payable by the respondent as a result. The respondent submits the fees claimed are incorporated in the October 17, 2017 plastic surgery treatment plan. It further submits that the costs were incurred prior to the 11th business day following receipt of the treatment and assessment plan. I agree with the respondent.

25Pursuant to section 38(2) of the Schedule, the respondent is not liable to pay for medical expenses which are incurred prior to the submission of a treatment and assessment plan. The expense was incurred on October 17, 2017, two days before the treatment and assessment plan was submitted.

26Further, the plastic surgery consultation is an expense that does not fall within the exceptions outlined in section 38(2)(c). While some expenses do not require the submission of a treatment and assessment plan first, the plastic surgery consultation fee is not one of them. Paraphrasing, the exemption is subject to the funding limit provided by section 18 of the Schedule and applies to goods that have a cost of $250.00 or less for any of the following; prescription eyewear, dentures and dental devices, prosthesis, orthotics and other assistive devices, workplace modifications and devices, home modifications and home devices, and vehicle modifications.

INTEREST

27I find the applicant is not entitled to interest pursuant to section 51 because no payments went overdue.

28The applicant is not entitled to non-earner benefits, has not incurred the cost of the psychological assessment, and is not entitled to the $250.00 plastic surgery consultation fee. The applicant did not incur any reasonable and necessary expenses. As a result, no payments were due and, therefore, no payment can be overdue which would warrant entitlement to any payment for interest.

AWARD

29I find the applicant is not entitled to an award pursuant to section 10 of Ontario Regulation 664 because no benefits were unreasonably withheld or delayed.

30The applicant claims that the respondent’s decision to characterize his injuries as predominantly minor injuries, deny non-earner benefits, failure to employ an interpreter for the Bradbury IE, and failure to provide school and medical records to IE assessors and seek an addendum report were unreasonable. The respondent submits it made its decisions based on the medical evidence at hand, which was limited at the beginning of the applicant’s claim. It further submits that it adjusted the claim in good faith as evidenced by conducting a second psychological IE and removing the applicant form the MIG and the $3,500.00 funding limit on treatment following the Cohen report and not as a result of the medical evidence submitted by the applicant.

31I find no evidence the respondent unreasonable withheld or delayed payment of a benefit. As previously noted, the decision to deny funding for the psychological assessment proposed in the January 11, 2017 treatment plan may have been incorrect, but the denial was with reason. It was denied according to the recommendation of Dr. Bradbury which appeared reasonable at the time. It is not unreasonable to follow the recommendations of regulated healthcare professionals in the absence of any obvious issues or errors in the recommendation.

32The applicant is not entitled to payment for any of the remaining benefits. No payment was ever due for these benefits claimed and as a result, no payment was withheld or overdue.

CONCLUSION

33There is insufficient evidence to determine that the applicant is entitled to a non-earner benefit.

34The psychological assessment is reasonable and necessary but not payable as it was not incurred.

35The applicant is not entitled to the costs of the plastic surgery consultation pursuant to section 38(2) of the Schedule because the costs were incurred prior to the submissions of a treatment and assessment plan and the costs are not included in the exceptions listed in section 38(2)(c).

36The applicant is not entitled to interest or an award.

Footnotes

1. 1Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para. 50
2. 2Ibid.