Citation: Bacevic vs. Aviva General Insurance, 2020 ONLAT 19-006349/AABS

Released Date: 09/16/2020

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:

Tamara Bacevic

Applicant

and

Aviva General Insurance

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Tamara Bacevic, Applicant

Francesco Blasi, Paralegal

For the Respondent:

Catherine Zingg, Counsel

Heard by way of written submissions

OVERVIEW

1On January 21, 2017, the applicant (“T.B.”) was the seat-belted passenger of a vehicle that, after being t-boned by a left-turning vehicle, swerved and side-swiped another vehicle traveling beside it.

2As a result of the accident, the vehicle’s air bags deployed. T.B.’s door would not open. She had to jump to the driver’s side to be pulled out of the vehicle. The vehicle was written off.

3T.B. required no emergency medical attention, but attended a walk-in clinic the same day and was prescribed anti-inflammatory medication and recommended physiotherapy.

4A few days later, T.B. followed up with her family physician, who recommended continuing with physiotherapy.

5T.B. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). T.B. was denied certain benefits by the respondent (“Aviva”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES TO BE DECIDED

6The issues in dispute are as follows:¹

i. Is T.B. entitled to the unapproved amount of $503.90 for the cost of a psychological assessment (original amount proposed: $2,200.00) recommended by Pilowsky Psychology Professional Corporation in a treatment plan (OCF-18) submitted on April 13, 2017, and denied by Aviva on May 1, 2017?

ii. Is T.B. entitled to a medical benefit in the amount of $922.72 for physical therapy recommended by Spinal Touch Wellness Centre in a treatment plan (OCF-18) submitted on December 18, 2017, and denied by Aviva on January 4, 2018?

iii. Is T.B. entitled to a medical benefit in the amount of $1,346.52 (original amount proposed: $3,715.87) for psychological treatment recommended by Assurance Medical in a treatment plan (OCF-18) submitted on January 8, 2018, and denied by Aviva on January 23, 2018?

iv. Is T.B. entitled to interest on any overdue payment of benefits?

RESULT

7I find that Aviva is liable to pay to T.B. $922.72 plus interest in accordance with s. 52(5) of the Schedule for the physical therapy sessions in the treatment plan (OCF-18) submitted on April 13, 2017.

8T.B. is not entitled to the disputed amounts in the treatment plans (OCF-18s) partially approved by Aviva on January 4, 2018 and January 23, 2018 for the cost of a psychological assessment and psychological treatment, respectively. As these amounts are not payable, no interest is due with respect to these treatment plans.

9T.B. seeks an order for a special award pursuant to Regulation 664. Adjudicator K. Parish did not include the issue of a special award in her Case Conference Order of November 6, 2019. Aviva submits that the issue was withdrawn at the case conference. I find that a special award is not properly in dispute, and therefore do not consider T.B.’s submissions on this issue.

ANALYSIS

10Aviva submits that it removed T.B. from the Minor Injury Guideline and to date has paid for medical and rehabilitation benefits in excess of the monetary limit for the treatment of minor injuries. I need not determine whether T.B.’s injuries are predominantly minor as defined in the Schedule, but simply whether she is entitled to the disputed medical benefits based on the reasonableness and necessity of those expenses as set out in the Schedule.

11T.B. will be entitled to the disputed medical benefits if, in accordance with s. 15 of the Schedule, she can demonstrate that the treatment plans include reasonable and necessary expenses incurred by her or on her behalf as a result of the accident.

Issue i: Is the proposed treatment plan for a psychological assessment reasonable and necessary?

12T.B. submitted a treatment plan (OCF-18) dated April 13, 2017 in the amount of $2,200.00 for a psychological assessment. In an Explanation of Benefits (“EOB”) dated April 18, 2017, Aviva denied the treatment plan, requesting a copy of T.B.’s family physician’s clinical notes and records and indicating that T.B. may be required to attend a s. 44 Insurer’s Examination.

13On May 1, 2017, Aviva sent T.B. another EOB advising that T.B. had been scheduled to attend an Insurer’s Examination. The stated purpose of this examination was to assist Aviva in determining whether the proposed psychological assessment was reasonable and necessary. The EOB noted that Aviva would be unable to consider payment for the recommended treatment until the results of the examination had been received. The examination was initially scheduled to occur on June 13, 2017, but on May 11, 2017 Aviva sent T.B. an EOB advising that the examination had been rescheduled for June 28, 2017 with Dr. Cindi Goodfield, Psychologist.

14On June 9, 2017, after Aviva denied the treatment plan for the psychological assessment, but before the Insurer’s Examination by Dr. Goodfield was to occur, T.B. underwent the proposed psychological assessment with Dr. J. Pilowsky, Clinical and Rehabilitation Psychologist. Dr. Pilowsky noted in her report that she had proceeded to conduct the assessment in spite of Aviva’s denial because in her professional opinion, “this patient warranted psychological intervention.”²

15On June 28, 2017, Dr. Goodfield issued her report. In her opinion, T.B. met the criteria for a diagnosis of Specific Phobia related to driving. While Dr. Goodfield determined a mental health assessment to be reasonable and necessary to address T.B.’s vehicular anxiety, she considered the cost associated with the treatment plan to be excessive. She concluded that a psychological assessment for the purpose of treatment planning could reasonably be completed in an eight to 10 hour timeframe, and that the cost of the plan should not exceed $1496.10 plus the cost of completing the OCF-18, for a total cost of $1696.10.³

16On July 24, 2017, Aviva sent an EOB to T.B. advising that based on Dr. Goodfield’s findings, it had partially approved the treatment plan for a psychological assessment in the amount of $1,696.10.⁴

17T.B. submits that Dr. Goodfield erred by giving an opinion on the reasonableness and necessity of the amounts claimed in the April 13, 2017 treatment plan because Aviva did not ask her to opine on quantum and the treatment plan was already formulated.

18I find T.B.’s submissions on this issue unpersuasive. T.B. bears the onus of establishing that the claimed expenses are reasonable and necessary. T.B. has adduced no evidence to counter the opinion of Dr. Goodfield that the fees claimed in the treatment plan are excessive. Dr. Pilowsky provided no rationale for claiming the maximum amount permitted under s. 25(5)(a) of the Schedule for any one assessment and the preparation of related reports. T.B. has made no submissions nor directed me to any case law in support of her position.

19I understand T.B.’s position to be that because the proposed plan had already been formulated and because Aviva ultimately determined that a psychological assessment was reasonable and necessary, T.B.’s claim for the maximum assessment fee allowed under the Schedule must also be reasonable and necessary.

20I see nothing in the Schedule to indicate that this is the case. To the contrary, s. 38(3)(c) of the Schedule provides that each constituent part of a plan must meet the threshold of reasonableness and necessity. That section requires that the “the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs” [emphasis added] be reasonable and necessary for treatment or rehabilitation.⁵

21I find no basis in law that it is an error for an Insurer’s Examiner to provide an opinion on the reasonableness of the costs associated with a treatment and assessment plan without specifically being asked to do so.

22Based on the record before me, I conclude that T.B. has failed to discharge her onus of establishing, on a balance of probabilities, that the full amount claimed for the proposed psychological assessment is reasonable and necessary. As such, T.B. is not entitled to the outstanding $503.90 in dispute.

Issue ii: Is the proposed treatment plan for physical therapy services reasonable and necessary?

23On December 18, 2017, T.B. submitted a treatment and assessment plan (OCF-18) in the amount of $922.72 recommending 16 sessions of physical therapy. The goals of the treatment plan included pain reduction, increased range of motion, increased strength and return to pre-accident work activities and activities of daily living.⁶

24T.B. submits that the disputed treatment plan is reasonable and necessary because her family doctor, Dr. Sanaa Beshay, recommended “ongoing physio, Advil as needed” when she visited her on July 24, 2017 complaining of continuing upper right shoulder and neck pain.⁷

25By way of an EOB dated January 4, 2018, Aviva denied the medical benefits claimed in the treatment plan. The EOB indicated that Aviva required an Insurer’s Examination to assess whether the proposed treatment was reasonable and necessary. However, Aviva makes no submissions as to whether an Insurer’s Examination was held in relation to this treatment plan, and there is nothing in evidence to establish that one ever took place. Instead, Aviva relies on Dr. Goodfield’s June 28, 2017 psychological assessment report for its position that ongoing facility-based care would not have assisted with T.B.’s recovery at that time. During Dr. Goodfield’s psychological assessment, T.B. had reported that she perceived a 60% overall improvement in her post-accident physical condition and that she was hopeful regarding her further recovery.⁸

26I give little weight to the observations of Dr. Goodfield, who is qualified in clinical psychology, as they relate to the improvement in the T.B.’s post-accident physical condition. Dr. Goodfield documented T.B.’s self-reports regarding her perceived progress in physical recovery in the context of a psychological assessment. Dr. Goodfield’s inquiries are relevant to an assessment of T.B.’s psychological condition, not the reasonableness and necessity of any facility-based physical treatment. Notably, Dr. Goodfield offered no opinion on the latter. It is Aviva’s submission, unsupported by evidence, that the disputed treatment plan is not reasonable and necessary.

27On the basis of the July 24, 2017 recommendation of Dr. Beshay that T.B. seek ongoing physiotherapy, and in the absence of any medical evidence to substantiate the denial of such therapy, I conclude on a balance of probabilities that T.B. is entitled to a medical benefit of $922.72.

Issue iii: Is the proposed treatment plan for psychological services reasonable and necessary?

28T.B. submitted a treatment and assessment plan (OCF-18) dated January 8, 2019 for psychological treatment in the amount of $3,715.87. By way of an EOB dated March 13, 2019, Aviva partially approved the plan in the amount of $2,369.34.⁹

29Aviva partially denied the proposed treatment based on the February 20, 2019 Insurer’s Examination of Dr. Shahriar Moshiri, Psychologist, who determined the plan was only partially reasonable and necessary. Dr. Moshiri found that 12 hours of psychotherapy sessions, one hour of reassessment, 1.5 hours of progress/discharge report, and the cost of preparing the treatment and assessment plan (OCF-18) were reasonable and necessary for a total of $2,369.34. Dr. Moshiri determined that the proposed 12 counts of “support activity (documentation)” appeared to have no psychotherapeutic value and therefore concluded they were not reasonable and necessary.¹⁰

30To the date of Dr. Moshiri’s examination, T.B. had not received any psychological treatment.¹¹ In addition to Dr. Pilowsky’s diagnosis almost two years prior of a moderate depressive episode and Dr. Goodfield’s determination that T.B. was suffering from Specific Phobia related to driving, Dr. Moshiri determined that T.B. met the DSM-5 criteria for Adjustment Disorder, Somatic Symptom Disorder, and Persistent Insomnia Disorder – Persistent with Other Sleep Disorders.¹²

31It is clear from the evidence that T.B. suffered a psychological impairment as a result of the accident that significantly impacted her psychological functioning and for which she required treatment. Aviva does not dispute this. However, T.B. has not established that the disputed amount claimed for 12 counts of “support activity (documentation)” are reasonable and necessary.

32The only submission T.B. makes in relation to the disputed amount in the treatment plan is that Dr. Moshiri erred in giving an opinion on the reasonableness of the costs associated with the proposed treatment. T.B. submits that Dr. Moshiri’s determination that psychological treatment was necessary means that she is entitled to the disputed amounts.

33As noted above, the costs of a proposed treatment or assessment are not automatically reasonable and necessary simply because an insurer agrees that the treatment or assessment itself is reasonable and necessary. Nor will the fact that a treatment plan has already been formulated make all the constituent elements of a plan reasonable and necessary.

34T.B. has the onus of establishing on a balance of probabilities that the disputed portion of the treatment and assessment plan is reasonable and necessary. She has not done so. Aviva is not liable to pay the amount of the treatment plan remaining in dispute.

Issue iv: Is the applicant entitled to interest on any overdue payment of benefits?

35T.B. seeks an order for interest in accordance with s. 52(5) of the Schedule on any outstanding amounts. I have determined that T.B. is entitled to receive $922.72 for the cost of 16 sessions of physical therapy sessions at Spinal Touch Wellness Centre and she is entitled to interest for that outstanding amount.

ORDER

36For the reasons outlined above, I order:

i. Aviva shall pay to T.B. the sum of $922.72 plus interest calculated in accordance with s. 52(5) of the Schedule.

Footnotes

1. 1As identified in the Case Conference Order of Adjudicator K. Parish dated November 6, 2019.
2. 2Respondent’s Brief, Tab 10.A: J. Pilowsky, Psychological Report, June 9, 2017, p. 4.
3. 3Respondent’s Brief, Tab 8: C. Goodfield, Psychological Assessment dated June 28, 2017, p. 14.
4. 4Respondent’s Brief, Tab 5.G: Explanation of Benefits dated July 24, 2017.
5. 5Schedule, s. 38(3)(c).
6. 6Applicant’s Brief, Tab 5: Treatment and Assessment Plan (OCF-18) dated December 16, 2017, p. 7.
7. 7Applicant’s Brief, Tab 7: Selected Clinical Notes and Records of Dr. Sanaa Beshay.
8. 8Respondent’s Brief, Tab 8: C. Goodfield, Psychological Assessment dated June 28, 2017, p. 1
9. 9Respondent’s Brief, Tab 5.n.: Explanation of Benefits, March 13, 2019.
10. 10Respondent’s Brief, Tab 9: Psychology Assessment of Dr. S. Moshiri dated March 5, 2019.
11. 11Respondent’s Brief, Tab 9: Psychology Assessment of Dr. S. Moshiri dated March 5, 2019 at p. 6.
12. 12Respondent’s Brief, Tab 9: Psychology Assessment of Dr. S. Moshiri dated March 5, 2019 at p. 8.