Rashma Sidhu v. Aviva General Insurance Company, 2020 CanLII 94786

Citation: Sidhu vs. Aviva General Insurance, 2020 ONLAT 19-013504/AABS

Released Date: 12/01/2020

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:

Rashma Sidhu

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Aminder Hayher

For the Respondent:

Nabila Majidzadeh

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on March 4, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva removed the applicant from the Minor Injury Guideline on the basis of her psychological impairments but denied the treatment plan in dispute here based on its determination that it was not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The sole issue in dispute is as follows:

a. Is the applicant entitled to $3,635.98 for psychological treatment, recommended by Elite Specialist Group Inc., in a treatment plan (“OCF-18”) dated August 3, 2018?

RESULT

3The applicant is not entitled to payment for the treatment plan in dispute as she has not demonstrated that it is reasonable and necessary.

ANALYSIS

Is the psychological treatment plan reasonable and necessary?

4Under s. 15 of the Schedule, the insurer shall pay for all reasonable and necessary expenses incurred by the insured as a result of the accident. The applicant bears the burden of proving, on a balance of probabilities, that the specific treatment they seek is reasonable and necessary for their accident-related impairments and the goals of that treatment.

5The applicant submits that the treatment plan proposing 12 additional sessions of in-person psychotherapy is reasonable and necessary based on the psychological diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood by Dr. Shaul in November 2016, which was confirmed by Dr. Marino in a s. 44 report shortly after. To this end, the applicant relies on the progress report of Dr. Shaul dated June 11, 2018 indicating that she continues to experience vehicle anxiety and depressed mood. The progress report states that “despite her gains as a result of the previously approved psychological therapy, she continues to experience persistent and intrusive thoughts of despair, along with a sense of helplessness and hopelessness.” The applicant also relies on more recent clinical notes and records indicating that she continues to experience bad dreams, is more emotional, has less interest in activities, hopelessness, frustration and generalised vehicle anxiety.

6In response, Aviva submits that continuing treatment is not reasonable and necessary and relies on the September 2018 s. 44 Insurer’s Examination report of Dr. Seon, psychologist, who determined that the applicant’s current presentation was not of a magnitude to warrant a psychological diagnosis, as her previous treatment was helpful. The report notes that the applicant continues to travel in and operate a vehicle, reported no significant symptoms of anxiety and that her test scores endorsed atypical symptomology and magnification. The report found the treatment plan was not reasonable and necessary and Aviva submits it is the only contemporaneous report involving testing.

7Aviva further raises causation issues, submitting that any anxiety or regression in the applicant’s psychological symptoms can be attributed to a subsequent accident that occurred in the summer of 2018 where her vehicle spun out and struck a barrier, which the applicant’s submissions seem to concede. It also submits that the applicant has not demonstrated how the goals of the OCF-18 will be addressed where the functional goal in Part 9 indicates a return to activities of daily living. Aviva submits that the applicant continues to drive, is gainfully employed, has applied for college and is in a relationship. It points to her reporting to Dr. Seon that she is unsure if she is going to schedule follow-up appointments for treatment.

8I agree with Aviva. On the evidence, I find there is limited indication that the applicant’s current complaints are related to the accident that occurred in March 2016. At para. 18 of her submissions, the applicant seems to attribute an increase in her anxiety and a regression in her progress to the subsequent accident in 2018, which she self-reported to Dr. Seon. The most recent psychological report from Dr. Seon found that the applicant’s current presentation at the time the OCF-18 was submitted was not of a magnitude to warrant a psychological diagnosis and no further treatment was recommended. Dr. Seon indicated that the applicant reported being unsure if she even wanted to engage in further treatment, a statement not contested by the applicant on reply.

9Further, the diagnoses on which the applicant relies were made two years prior to Dr. Seon’s report, with seemingly no update on her diagnosis in the time between, other than the progress report and treatment notes from Dr. Shaul. Notably, the progress report does not re-affirm a diagnosis, only stating that the applicant continues to experience vehicle anxiety and negative thought processes that would require additional, ongoing treatment through his clinic, although it appears that Dr. Shaul was not providing treatment to the applicant himself. Despite this report, I note the applicant continues to drive a manual vehicle and travel as a passenger and it is unclear how the negative thought processes are attributed to the 2016 accident. The clinical notes provided do not provide compelling support. The notes from Dr. Gill do not reference an accident and do not recommend psychological treatment. In a similar vein, the clinical notes from Dr. Hadi make no mention of an accident, offer no psychological diagnosis and do not refer the applicant for treatment or counselling.

10In any case, more problematic is the fact the applicant has not demonstrated why the goals of the OCF-18 and the costs of achieving those goals at $3,635.98 is a reasonable and necessary expense. There are no specific submissions on the costs of each item in the treatment plan or an explanation as to why 12 additional 1.5-hour sessions is reasonable over two years post-accident (now over four years post-accident), where the most recent psychological assessment revealed no diagnosable psychological condition and the clinical notes since do not even reference an accident. The treatment plan actually proposes an increase in the number of sessions from the first block of incurred treatment, which I find is difficult to reconcile with the applicant’s self-reporting that she was unsure if she even wanted additional treatment, but also calls into question whether the first slate of approved treatment was beneficial enough to justify more.

11To the degree that the goals of additional treatment are a return to activities of daily living, I find limited indication that her daily activities or life circumstances have been hindered as a result of psychological impairments that can be attributed to the 2016 accident and the applicant has not demonstrated the connection. Accordingly, I find the treatment plan is not payable as the applicant has not demonstrated that it is reasonable and necessary.

CONCLUSION

12The applicant is not entitled to payment for the treatment plan in dispute as she has not demonstrated that it is reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.