Afriat v. Aviva Insurance Canada, 2020 CanLII 94793

Citation: Afriat vs. Aviva Insurance Canada, 2020 ONLAT 19-009318/AABS

Released Date: November 17, 2020

Tribunal File Number: 19-009318/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:

Jason Afriat

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Melinda Baxter, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident (the "accident") on August 2, 2017 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The respondent, Aviva Insurance Canada ("Aviva"), refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

2A case conference was held on January 27, 2020. The parties were unable to resolve their dispute and have proceeded to a written hearing.

ISSUES

3The disputed claims in this hearing, which were noted in the order dated January 27, 2020, are:

1. Is the applicant entitled to receive medical benefits recommended by Health-Pro Wellness as follows?

   i. $2,747.00 for chiropractic treatment and massage therapy submitted in a treatment plan (OCF-18) dated June 1, 2019;

   ii. $2,197.29 for a psychological assessment submitted in a treatment plan (OCF-18) dated December 8, 2017; and

   iii. $3,693.04 for a psychological treatment submitted in a treatment plan (OCF-18) dated June 3, 2019.

2. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find the applicant is entitled to the following benefits:

i. $2,197.29 for a psychological assessment;

ii. $3,693.04 for psychological treatment; and

iii. The applicant is entitled to interest in accordance with s. 51 of the Schedule for these payable benefits.

5I find the applicant is not entitled to the OCF-18 in the amount of $2,747.00 for chiropractic treatment and massage therapy, and no interest is owed for this. Further, I find the applicant is not entitled to an award under Ontario Regulation 664.

ANALYSIS

Is the applicant entitled to chiropractic treatment and massage therapy in the amount of $2,747.00?

6I find this OCF-18 in the amount of $2,747.00 is not reasonable and necessary for the reasons outlined below. I find the respondent's Explanation of Benefits ("EOB") dated August 22, 2019 provided a sufficient medical reason for the partial denial of this OCF-18. The unapproved balance was not incurred and, as a result, the respondent is not required to pay for this unapproved balance.

7The applicant's position is this OCF-18 is reasonable and necessary to restore the applicant's functional abilities. The applicant also argues that the respondent failed to provide a reasonable explanation; medical or otherwise in accordance with the provision set out within the Schedule when it initially denied the OCF-18 on June 14, 2019.

8The respondent submits this OCF-18 is partially reasonable and necessary -- the OCF-18 was partially approved in the amount of $538.40 and the applicant was notified through a second EOB dated August 22, 2019. The respondent argues the applicant has only incurred the partially approved amount of this OCF-18 and an insurer is required to pay for incurred goods and services during the relevant time period set out within s. 38 (11) (2) of the Schedule. The respondent relies on the insurer's examination ("IE") report¹ and addendum report² of Dr. Y. Marchuk, physiatrist that the balance of the OCF-18 is not reasonable and necessary.

9The applicant submitted that by the respondent failing to provide an explanation, including a medical reason for its denial in its EOB dated June 14, 2019 ("initial EOB")³, the notice was defective. The applicant submitted the OCF-18 was never denied until it issued a further EOB dated August 22, 2019 ("second EOB")⁴ when the respondent referenced the medical opinion of Dr. Marchuk and partially approved the OCF-18. I agree with the applicant that the respondent's initial EOB lacked sufficient reasons, including a medical reason when it denied this OCF-18. As a result, the notice was defective as the respondent did not comply with the requirements set out within s. 38 (8) of the Schedule. The initial EOB noted that there appeared to be gaps in treatment without documented clinical explanation and that the clinical notes and records ("CNRs") of Dr. S. Li had been recently received. It further noted that an IE would be scheduled to determine if the proposed goods and services in the OCF-18 are reasonable and necessary.

10Section 38 (11) (2) of the Schedule notes the consequence if an insurer fails to provide proper notice in accordance with subsection (8). The consequence being the insurer shall pay for all goods, service, assessments and examinations described within the treatment plan which relate to the period commencing on the 11th business day after the insurer received the application (treatment plan) and ending on the day in which the insurer provides notice as described in subsection (8). I rely on the Tribunal's reconsideration decision M.F.Z. v. Aviva Insurance Canada⁵ which was submitted by the respondent. The Executive Chair found that although s. 38 (11) (2) was a "shall pay" provision, it provided a window for an insurer to cure a defective notice. Therefore, I find the respondent cured this defective notice when it issued the second EOB and relied on the medical opinion of its IE assessor, Dr. Marchuk and partially approved this OCF-18. I find the respondent is not liable to fund the unapproved balance of the OCF-18 pursuant to s. 38 (11) (2) of the Schedule, as there is no evidence before me that the applicant has incurred the unapproved balance of this OCF-18.

11I do not find the balance of the OCF-18 is reasonable and necessary. This is because I am persuaded by the findings noted within the IE physiatry report of Dr. Marchuk. The applicant has not produced competing medical evidence which challenges Dr. Marchuk's findings. I am not persuaded by the applicant's medical evidence for the following reasons. The applicant submitted a clinical note and record ("CNR") from a walk-in clinic dated August 10, 2017⁶ which noted the motor vehicle accident (MVA) and that the applicant reported left shoulder pain and tenderness on range of motion. Full neck range of motion was noted. However, the OCF-18 was submitted 22 months after the date of this CNR entry and therefore provides little assistance with addressing the applicant's impairments at the time the OCF-18 was submitted. No further CNR's were produced by the applicant which address the applicant's physical impairments and there were no further physical treatment recommendations noted by the family doctor, Dr. S. Li. I am not persuaded by the disability certificate ("OCF-3)⁷ which noted the applicant's inability to perform his employment tasks and housekeeping and home maintenance tasks for a period of 9-12 weeks. While I accept the applicant may have been suffering from accident related impairments at the time the OCF-3 was submitted, I am not persuaded that the unapproved treatment proposed in the OCF-18 is reasonable and necessary for the reasons I address below. I find it difficult to be able to perform a relevant analysis of the goals and efficiency of the proposed treatment, its costs, and to consider other available treatment options. Therefore, I find the unapproved balance of this OCF-18 is not reasonable and necessary.

12The OCF-18 noted the injuries sustained by the applicant were impacting his ability to perform his tasks of employment and impacted his activities of normal life. The injury and sequela information noted: Whiplash Associated Disorder (WAD 2), acute, mid and low back pain, other sleep/anxiety disorders, post-traumatic stress disorder, and headaches. Sprains and strains of the following areas were noted: shoulder joint, other parts of lumbar spine/pelvis, sacroiliac joint, thoracic and cervical spine. The goals of the OCF-18 sought to increase the applicant's strength and range of motion so the applicant could return to his activities of normal life. There were 20 sessions of active/passive therapy and 10 sessions of massage therapy recommended in the OCF-18.

13The applicant underwent an IE assessment with Dr. Marchuk, physiatrist, to determine if the OCF-18 was reasonable and necessary. Dr. Marchuk issued an IE report dated August 16, 2019 and concluded the treatment plan was partially reasonable and necessary. The assessment included a clinical interview, a physical examination, and a file review which noted pre and post-accident documentation. The applicant reported completing many activities of daily living independently but with pain. He reported to Dr. Marchuk that he can only partially complete activities independently which include: meal prep/cooking, washing/drying laundry, cutting grass, gardening, and snow shoveling. He reported requiring assistance with housekeeping tasks and garbage removal. The applicant reported the following improvements related to pain since the accident: left shoulder improved 60%, left knee pain improved 10%, and symptoms of low back pain improved 50%. He reported his headaches have worsened since the accident. The applicant reported he continued to receive physiotherapy and massage therapy once per week since the accident and that it provided symptom relief.

14Upon physical examination, Dr. Marchuk noted range of motion was reduced by 5% in the cervical and lumbar and spine with tenderness to palpation over these areas and the thoracic spine. Full range of motion in both shoulders and the left knee with tenderness to palpation were noted. Dr, Marchuk diagnosed the following injuries as a result of the accident: WAD 2, cervicothoracic bilateral shoulder myofascial dysfunction, left shoulder tendinosis (pre-existing condition exacerbated by the accident), lumbar musculoligamentous dysfunction, and left patellofemoral joint dysfunction (pre-existing condition exacerbated by the accident.) Dr. Marchuk concluded based on the length of time since the accident that the applicant had reached maximum medical improvement. Dr. Marchuk found three sessions of exercise (multiple body sites) geared toward a home exercise program were reasonable and necessary. The massage therapy was found not to be reasonable and necessary as it was passive in nature and would not assist with the applicant's recovery. Dr. Marchuk also noted the applicant may benefit from trigger point injections in the cervical musculatures for symptom relief. After a review of additional medical information, Dr. Marchuk produced an addendum report dated April 9, 2020 and his report noted his opinion remain unchanged with respect to the disputed OCF-18.

15I accept the findings of Dr. Marchuk as I find his assessment was thorough and included a review of the applicant's pre-accident medical history, and his post-accident medical documentation. Dr. Marchuk noted impairments which pre-dated the accident and had not resolved prior to the accident.⁸ Details/highlights from the documentation reviewed were noted. I found this information helpful in identifying impairments pre-dating the accident that had not resolved prior to the accident. The assessment included a clinical interview and a physical examination with Dr. Marchuk's findings noted. While the applicant reported to Dr. Marchuk that ongoing physiotherapy and massage treatment at a frequency of once per week are beneficial for symptom relief, I am not persuaded that the proposed unapproved balance of the treatment plan is reasonable and necessary. I find Dr. Marchuk's findings persuasive in which he recommended three sessions of exercise geared toward a home exercise program and noted that the passive treatment of massage therapy would not assist in the applicant's recovery. I find Dr. Marchuk supported his finding based on the physical findings noted within his report. Dr. Marchuk did recommend trigger point injections for symptom relief for the applicant's neck muscles. However, this was not the treatment being proposed within the OCF-18. I find this further supports that the unapproved passive treatment proposed within the OCF-18 is not reasonable and necessary.

16The applicant has not produced a competing medical report or evidence which challenges Dr. Marchuk's findings. As a result, I concur with the findings of Dr. Marchuk that the balance of the proposed OCF-18 is not reasonable and necessary.

17I am not persuaded by the cases relied on by the applicant which determined that pain relief itself can be a legitimate medical and rehabilitative goal.⁹ Cubello v. Guidolin and the decision, 18-007571 v. Unifund Assurance Company found that pain relief itself can be a legitimate goal. However, there was medical evidence which supported those findings which was not produced in the case before me. In the decision from the Financial Services Commission ("FSCO"), Therese West and Aviva Canada Inc., the applicant was extremely physically active prior to the accident. She suffered from chronic pain post-accident which was accepted by the insurer. However, pain relief and rehabilitation were sought by the applicant to return to the pre-accident level of functioning and the Arbitrator found the passive treatment recommended 5 to 6 years post-accident was reasonable and necessary for the applicant to be able to resume these activities. The decision 16-003316 v. Peel Mutual Insurance Company, which the applicant referenced on page 13 of his submissions, was a reconsideration decision from the Tribunal's Executive Chair. That decision determined that insufficient medical reasons were provided by the insurer when it denied medical benefits. I do not find this case to be on point. I am not persuaded by these cases and I find the unapproved balance of the OCF-18 is not reasonable and necessary to address the applicant's pain complaints for the reasons I noted above.

Is the applicant entitled to a psychological assessment in the amount of $2,197.29?

Causation

18The respondent has raised a causation issue with respect to the applicant's psychological impairments resulting from the accident. The respondent argues the applicant has not proven but for the accident that he would not suffer a psychological impairment giving rise to the psychological complaints which form the basis for his claim. I disagree.

19The respondent argues the applicant has not met his onus of establishing how the proposed psychological assessment and treatment are causally related to the accident. The respondent submitted the applicant's medical records suggest that other factors are the cause and the basis for his current condition.

20The applicant's submissions did not specifically address causation. The applicant submitted that he suffers from pre-existing anxiety and depression which predate the accident and that his ongoing symptoms of anxiety and depression have notably increased since the accident. The applicant argues these should be addressed as they relate to the accident.

The Law

21It is the respondent's submission that the "but for test" is the applicable test for determining causation in this case and relies on the Supreme Court of Canada in the case of Clements v. Clements.¹⁰ Clements confirms that the primary test to use when determining causation is the "but for" test". Only in rare and exceptional circumstances, where it is impossible to determine the cause of the applicant's injuries using the "but for" test, can an applicant prove causation by indicating that the respondent's conduct "materially contributed" to the risk of the injury. This is not one of those cases.

22The respondent also relies on the Tribunal decision 16-000438 v. The Personal Insurance Company of Canada¹¹ in which the adjudicator determined that it is the applicant's onus to prove on a balance of probabilities that the injuries are not predominantly minor injuries by establishing that the psychological complaints are not merely psychological sequelae. Further, the applicant must prove that the psychological impairment is a direct result of the accident. While I agree with the finding within this decision, I do not find it is applicable in the case before me as the applicant in the case before me was removed from the Minor Injury Guideline ("MIG") and therefore the onus is on the applicant to prove whether he meets the test for causation and if so, he then has to prove the OCF-18's in dispute are reasonable and necessary.

23I find the applicant has established that he meets the test for causation under the "but for" test and that his current impairments are as a result of the subject accident. I rely on the Supreme Court of Canada case of Clements v. Clements. In reaching this conclusion, an analysis of the applicant's psychological impairments and the factors post-accident is necessary to determine his current levels of impairment arising from the subject accident. This is addressed within the analysis below.

24I find the applicant's psychological impairments were exacerbated by the accident and are as a result of the accident. I rely on the May 31, 2018 psychological assessment report¹² of Leila Abbaszadeh, registered social worker and psychotherapist, in which Dr. F. Aghamohseni, psychologist supervised the assessment and also signed the report. I also rely on the CNRs of the family doctor, Dr. Li. I accept the findings made within this psychological assessment report and I do not accept the psychological complaints to be psychological sequelae. I accept that the applicant has a history of anxiety and depression which predates the accident, but I accept the psychological diagnoses noted within this report directly relate to the accident. Specifically, the diagnosis of Somatic Symptom Disorder with predominant pain, in the persistent range, with severe pain, and the diagnosis of Specific Phobia, situational type, vehicular. I do not accept these diagnoses stem from the applicant's stressors from work which predate the accident and to the decline in his wife's health. This is because complaints related to pain and in-vehicle anxiety were only noted post-accident and I find these complaints logically connected to the accident. Further, I find Dr. Li's CNRs support the applicant's anxiety level and mood were improving prior to the accident but have deteriorated post-accident. I do not agree with the findings noted within the IE assessment and addendum reports of Dr. S. Mackenzie, psychiatrist which is further discussed in the paragraphs below. Dr. Mackenzie determined the applicant's psychological condition was not as a result of the accident, and that it was a result of external factors unrelated to the accident. I find her report failed to address the applicant's reported in-vehicle anxiety, or the applicant's reported pain complaints which arose post-accident. As a result, I find her report did not properly consider all of the factors as it relates to the applicant's level of anxiety and depression post-accident. I find the applicant's anxiety level and depression have increased as a result of the accident.

25I find the applicant is entitled to the OCF-18 for a psychological assessment which was incurred. The applicant's position is that the psychological assessment is reasonable and necessary as the applicant's anxiety and depressive symptoms have increased since the accident and are in relation to the accident. I agree. The disputed OCF-18 was prepared by Dr. Aghamohseni, and noted the following proposed goals: pain reduction, and to return to a pre-accident level of psychological functioning. Barriers to recovery were identified as sleep disturbances and post-traumatic stress disorder ("PTSD") symptomology. The additional comments noted on page 11 of the OCF-18 indicated the applicant reported a high degree of anxiety relating to how this accident and his recovery affect his life which also contributed to his lack of sleep. Dr. Aghamohseni noted the applicant described difficulty with accident ruminations, impatience, irritability, and that he gets frustrated easily. It was further noted that the applicant experiences in-vehicle anxiety as a driver and passenger since the accident. The respondent initially denied this OCF-18 by EOB dated December 22, 2017 and the basis for the denial was that the applicant's injuries fell within the MIG.

26The assessment consisted of a clinical interview and objective psychological testing was administered. The applicant reported reduced sleep since the accident (5-6 hours post-accident, compared to 8 hours pre-accident.) He reported cognitive challenges since the accident including misplacing keys, difficulty with paying attention to conversations, and also reported flashbacks of the accident which he had difficulty coping with. He reported increased sadness and anxiety since the accident. The report noted the applicant stated "I have severe anxiety right now. I go into freeze mode and I just can't leave the house." He reported not wanting to leave the house most of the time. He reported hypervigilant behaviour and anxiety when in a vehicle. He further reported since the accident that the pain he experiences has resulted in reduced leisure and physical activities and difficulties performing household tasks.¹³ He was diagnosed with the following: 1) Major Depressive Episode, single episode, in the severe range with anxious distress, 2) Somatic Symptom Disorder with predominant pain, in the persistent range, with severe pain, and 4) Specific Phobia, situational type, vehicular. I find the diagnoses are supported by the findings from the objective test results. Psychotherapy treatment was recommended to assist the applicant with returning to his pre-accident level of emotional and psychological functioning.

27I also accept the rate of $149.61 per hour charged by Dr. Aghamohseni, the rate noted within the Professional Services Guideline¹⁴ for a psychologist. I accept Dr. Aghamohseni is entitled to this hourly rate as he is a licensed psychologist and he supervised the psychological assessment and also signed the report. I find the fees he charged for the assessment to be in accordance with s. 25(5) of the Schedule. I also find $200.00 for the cost to complete the OCF-18 is also payable as this is an expense typically paid by the insurer.

28The applicant attended an IE assessment with Dr. S. Mackenzie, psychiatrist, whose report dated August 16, 2019¹⁵ found that the OCF-18 for the psychological assessment and the disputed OCF-18 for psychological treatment were not reasonable and necessary. Dr. Mackenzie concluded the applicant's psychological condition was not as a result of the accident. The respondent issued an EOB letter to the applicant dated January 31, 2020 which advised the applicant he was removed from the MIG. The respondent maintained their denial of the psychological assessment. Dr. Mackenzie issued an addendum report dated April 9, 2020¹⁶ and her opinion remained unchanged regarding the disputed OCF-18's.

29I am not persuaded by the findings of Dr. Mackenzie's report because it was based upon a clinical interview and a medical file review and does not appear to have been based on any objective testing. It was noted that the applicant reported his sleep was ok, he derives little joy from his life, and he experiences low energy and concentration. It was noted that the applicant reported his current stressors relate to difficulties in the workplace, his wife's health, and his commute to work. Dr. Mackenzie noted when she asked him about the accident, he reported "it didn't help" and he "has to deal with it." He further reported, apart from the physical issues, he believes the accident has contributed to his anxiety problems and reported he believes he could benefit from seeing a psychotherapist.¹⁷ Dr, Mackenzie noted on page 9 that "he did not appear particularly preoccupied with the accident" and he described a number of stressors which affected his mental health generally.

30Dr. Mackenzie referenced within her report, the CNRs of the applicant's family doctor, Dr. Li from 2014 - April 2019 which support that the applicant suffered with issues related to his mood, anxiety, job dissatisfaction and difficulty with sleep both pre- and post-accident. However, in the year prior to the accident, the CNR of June 29, 2016 noted there was an increase in use of one of the prescribed medications and the applicant was reporting he was feeling better. The CNR of March 8, 2017 noted the applicant reported he was stable with no new symptoms but reported difficulties with organization, communication, mood/anger management and was referred to a program to address these difficulties. A CNR of July 26, 2017, a week prior to the accident noted "Anxiety stable. Energy level low. Last year off work for anxiety. This year functioning well." The CNR of November 27, 2017, 3 months post accident was referenced by Dr. Mackenzie and noted the applicant was doing well without symptom concerns, his mood was good, and no significant anxiety.¹⁸ The next CNR references December 2018 and noted panic attacks and difficulty getting out of the house to get to work. The CNR entries from January 2019 noted the anxiety is manageable and he is able to work 2-3 days which is a day to day decision and sometimes he freezes due to panic attacks. These entries further noted he has been decompensating for past three years with his wife's health deterioration, work stressors, and lack of appreciation. The CNR of March 2019 noted he was referred by Dr. S.B. Khan, psychiatrist, for cognitive behaviour therapy for depression and anxiety. Dr. Khan also noted that his role in treating the applicant was primarily pharmacological intervention. The CNR also noted changes to his medication, no down days, still experiencing anxiety getting out of the house, and no panic attacks. It was further noted his mood was good, along with his insight and judgement.

31The CNRs above referenced by Dr. Mackenzie do note the applicant had ongoing issues with sleep, anxiety, and his mood prior to the accident and that there were factors unrelated to the accident which he reported were stressors for him. However, I find Dr. Mackenzie did not thoroughly address the impacts of the accident on the applicant's pre-existing psychological impairments to determine if there was an exacerbation of his psychological impairments. For example, Dr. Mackenzie does not address the in-vehicle anxiety which was noted within both OCF-18's and the psychological report of Leila Abbaszadeh and Dr. Aghamohseni which Dr. Mackenzie noted she reviewed. The applicant reported to Dr. Mackenzie that the accident contributed to his anxiety problems, but Dr. Mackenzie did not explore this further but noted rather that he did not seem preoccupied with the accident. I find that Dr. Mackenzie placed a strong emphasis on other factors in the applicant's life which he reported as stressors and were the cause for the applicant's current level of psychological impairment, but no objective testing was conducted. I find Dr. Mackenzie gleaned over the applicant's self report of the contribution of the accident to his anxiety problems and she did not address anything with respect to the applicant's reported in-vehicle anxiety. As a result, I am not persuaded by Dr. Mackenzie's conclusion that the applicant's depression and anxiety are not directly attributed to the accident and that they are attributed to other significant stressors in his life.

32I disagree with Dr. Mackenzie's conclusion. I find the accident has exacerbated his anxiety and depression. I am persuaded by the self-reported information on both OCF-18's noted by Dr. Aghamohseni and contained with the psychological assessment report of Leila Abbaszadeh and Dr. Aghamohseni. I find the information contained within their report was detailed and I find the information was consistent with supporting their findings. I accept that the factors noted in relation to in-vehicle anxiety would be significant contributing factors to the applicant's increased anxiety due to his commute to work and anxiety with leaving the house to get to work. I do not accept that this increased anxiety is completely attributed to his job dissatisfaction and his wife's health deterioration. A CNR dated April 23, 2019 from Dr. Li, family doctor, noted improved morning energy and anxiety and noted he is upset when he is unable to make it to work. It was further noted his mood was ok and his insight and judgement were good.¹⁹ I find this evidence suggests the applicant was improving but I do not find the applicant's psychological impairments were resolved by this point.

33The respondent noted that the CNRs of Dr. Li and Dr. Khan do not mention the accident, nor note it as a contributing factor. The respondent submitted that these doctors both attribute the applicant's psychological symptoms to work related stress and his wife's health. I disagree. While their CNRs note information self-reported by the applicant regarding his job and his wife's health, I do not find either doctor has endorsed the applicant's psychological condition to be solely the result of these two factors. The CNRs of both doctors note that changes in the applicant's psychological condition post-accident have led to medication and dosage changes and referrals to cognitive behaviour therapy.

34The respondent's EOB dated June 18, 2019²⁰ noted that upon the respondent's review of Dr. Li's CNRs and the May 31, 2018 psychological assessment report produced by the applicant, the respondent determined it would need to schedule an IE assessment to determine if the proposed OCF-18 for psychological treatment was reasonable and necessary. I find this evidence establishes that the respondent was obtaining its own medical opinion to assist with determining whether the psychological treatment was reasonable and necessary. I find this supports that the psychological assessment incurred by the applicant is reasonable and necessary. The psychological assessment incurred by the applicant supports there were psychological impairments directly resulting from the accident and recommended psychological treatment to address the specific impairments. The onus remains with the applicant to prove his claim and I find this evidence was both reasonable and necessary for the applicant to meet their onus. I am also persuaded by the findings of the psychological report produced by the applicant.

35I find the totality of this evidence supports the applicant's anxiety was not just related to his job and his wife's health. On a balance of probabilities, I find the psychological assessment is reasonable and necessary as I accept there was an exacerbation in the applicant's anxiety and depression as a direct result of the injuries sustained from the accident.

Is the applicant entitled to psychological treatment in the amount of $3,693.04?

36I find this OCF-18 which proposed 12 sessions of cognitive psychotherapy, a psychological reassessment, and a progress report is reasonable and necessary. I find the goals of the OCF-18 are supported as the additional comments section on page 10 note the specific impairments and how the proposed treatment will address of these impairments. I am persuaded by the diagnosis and recommendations noted within the psychological report of Leila Abbaszadeh, in which the assessment was supervised and signed by Dr. Aghamohseni. I find the treatment proposed within this OCF-18 aligns with the treatment recommendations noted within the psychological assessment report relied on by the applicant. Further, the psychiatric IE report of Dr. Mackenzie noted the applicant had reported that he could benefit from seeing a psychotherapist. For these reasons, I find the OCF-18 in its entirety is reasonable and necessary.

Is the applicant entitled to an award?

37I do not find the applicant has met his onus that the respondent's behaviour has risen to the level of an unreasonable withholding of benefits and therefore he is not entitled to an award. The applicant, seeks an award under Section 10 of Ontario Regulation 664 (the "Regulation") under the Insurance Act, RSO 1990, c I.8 (the "Act") which allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which the applicant is entitled if the Tribunal determines that the respondent unreasonably withheld or delayed payments to the applicant. In his submissions for the award claimed, the applicant submitted the respondent's initial denial of the OCF-18 dated December 22, 2017 for the psychological assessment was defective as the respondent denied the psychological assessment on the basis that the treating health practitioner's medical opinion did not provide compelling evidence the impairment sustained was not a minor injury. The applicant submitted this notice was "boilerplate." The applicant submitted the notice did not identify which treating health practitioner's opinion it was referring to and did not "specifically address the unique merits" of the applicant's longstanding medical history and pre-accident diagnoses of psychological impairments.

38The applicant relies on the Tribunal decision 18-006820 v. Aviva General Insurance Company²¹ in which the adjudicator found the respondent's denial of a treatment plan was defective as it was "boilerplate" and did not identify the treating medical practitioner whose medical opinion was reviewed. While the wording in the denial notice referenced within that decision contained the same language used in the December 22, 2017 denial in this case, I have already found both of these OCF-18's are reasonable and necessary. The applicant argues the respondent failed to adequately consider the totality of the applicant's medical evidence between June 2019 and January 2020 when it finally removed the applicant from the MIG. Further, the applicant submitted after the applicant was removed from the MIG, the respondent did not revise its position regarding their denial of the OCF-18's for a psychological assessment and treatment. The applicant relies on the 18-006820 decision in which the adjudicator found an award in the amount of 25% based on the insurer not promptly responding to the applicant's claim for benefits and the applicant being vulnerable. The adjudicator further determined that the insurer had not complied with its obligations under the Schedule; specifically, with its notice of IEs and denial of benefits.²² I find some of the facts distinguishable in that decision compared to the case before me. For example, that case addressed deficient notices for the applicant's failed attendance at IE's and that case also addressed non-earner benefits in dispute.

39The respondent submitted there is no evidence that it unreasonably or unintentionally refused payments of the OCF-18's in dispute. The respondent submitted it relied on informed medical opinions when determining whether the disputed OCF-18's were reasonable and necessary. Lastly, the respondent submitted that the applicant has not proven but for the accident he would not suffer from an impairment which caused the psychological complaints forming the basis for his claim.

40The applicant produced a psychological assessment report dated May 31, 2018. While the respondent was obligated to review the contents of the report, the respondent made the determination that it did not change their original decision to deny the OCF-18 for a psychological assessment. While this assessment did recommend the applicant undergo psychotherapy treatment, the OCF-18 proposing psychological treatment was not submitted to the respondent until June 2019. I find the respondent continued to review updated medical information and sent the applicant for an IE psychiatric assessment to further reconsider the OCF-18's for the psychological assessment and treatment. The psychiatric IE assessment with Dr. Mackenzie determined the applicant's psychological condition was not a result of the accident. An addendum report was later issued by Dr. Mackenzie based upon a review of further medical evidence and her opinion remained unchanged. The respondent's position is that the applicant's psychological condition was not the result of the accident. While I have found otherwise, I find the respondent should not be penalized by an award being made against them because the respondent chose to rely on the medical opinion of its own IE assessor. Further, the applicant has not provided any explanation for the delay from May 31, 2018 to June 3, 2019 when he submitted the OCF-18 requesting psychological treatment. For all of these reasons, I find an award is not warranted.

ORDER

41Based on the evidence before me, I order the applicant is entitled to the following benefits:

i. $2,197.29 for a psychological assessment;

ii. $3,693.04 for psychological treatment; and

iii. The applicant is entitled to interest in accordance with s. 51 of the Schedule for these payable benefits.

42I find the applicant is not entitled to the OCF-18 in the amount of $2,747.00 for chiropractic treatment and massage therapy, and no interest is owed for this. The applicant is not entitled to an award under Ontario Regulation 664.

Footnotes

1. 1Tab 15 of respondent's submissions – IE physiatry report of Dr. Y. Marchuk, dated August 16, 2019.
2. 2Tab 17 of respondent's submissions – IE physiatry addendum report of Dr. Y. Marchuk, dated April 9, 2020.
3. 3Tab 20 of the applicant's exhibit book – respondent's EOB letter dated June 14, 2019.
4. 4Tab 16 of the respondent's submissions – respondent's EOB letter dated August 22, 2019.
5. 5M.F.Z. v. Aviva Insurance Canada, 2017 CanLII 63632 (ONLAT), paras 52, 55
6. 6Tab 4 of the applicant's exhibit book – CNR of walk-in clinic, dated August 10, 2017.
7. 7Tab 10 of the applicant's exhibit book – OCF-3 prepared by Rob Tarulli, chiropractor, dated June 1, 2019
8. 8Supra, note 1, at page 10 of Dr. Marchuk's Physiatry IE Assessment Report. Pre-existing impairments which had not resolved prior to the accident were noted as follows: sleep, depression, anxiety, and vision issues.
9. 91) Cubello v. Guidolin [2000] O.J. 1468. 2) 18-007571 v. Unifund Assurance Company, 2019 CanLII 110075 (ON LAT), paras 21, 23, 25. 3) A09-002136 Therese West and Aviva Canada Inc., FSCO, February 3, 2012, pages 8, 10, 12. 4) 16-003316 v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).
10. 10Clements v. Clements, 2012 SCC 32.
11. 1116-000438 and The Personal Insurance Company of Canada, 2017 CanLII 59515 (ON LAT), para 38.
12. 12Tab 12 of the applicant's exhibit book – psychological assessment report of Leila Abbaszadeh and Dr. Aghamohseni, dated May 31, 2018.
13. 13Ibid, at 5-7.
14. 14Professional Services Guideline, Superintendent's Guideline No. 03/14, September 2014
15. 15Tab 19 of the respondent's submissions- Psychiatric IE report of Dr. Mackenzie, dated August 16, 2019.
16. 16Tab 20 of the respondent's submissions – Addendum IE report of Dr. Mackenzie, dated April 9, 2020.
17. 17Supra, note 15, page 8
18. 18Supra, note 15, at 4-5.
19. 19Tab 21 of the respondent's submissions – CNR of Dr. Li, dated April 23, 2019, at 358.
20. 20Tab 21 in the applicant's exhibit book. Explanation of benefits letter from the respondent, dated June 18, 2019, page 201.
21. 2118-006820 v. Aviva General Insurance Company, 2019 CanLII 110080 (ON LAT), paras 44-48.
22. 22Ibid, paras 80, 82.