Vesprey v. Aviva General Insurance Company, 2021 CanLII 13207

Vesprey v. Aviva General Insurance Company, 2021 CanLII 13207

Citation: Vesprey vs. Aviva General Insurance Company, 2021 ONLAT 19-013678/AABS

Released Date: 01/25/2021

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:

Norva Vesprey

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Adriano Pranzitelli, Counsel

For the Respondent:

Amanda Fowler, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Norva Vesprey (“Ms. Vesprey”), was injured in an automobile accident on September 24, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance Company (“Aviva”), the respondent.

2Aviva denied Ms. Vesprey’s claims for psychological treatment and for a chronic pain assessment. As a result, Ms. Vesprey submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on May 11, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Ms. Vesprey entitled to psychological treatment recommended by Dr. Andrew Shaul, psychologist, as follows:

(a) $2,818.23 in a treatment plan (“OCF-18”) dated July 2, 2018, and denied on July 25, 2018?

(b) $2,818.23 in an OCF-18 dated September 4, 2019, and denied on October 23, 2019?

(ii) Is Ms. Vesprey entitled to $2,401.25 for a chronic pain assessment recommended by Q-Medical in an OCF-18 dated July 16, 2019, and denied on July 22, 2019?

(iii) Is Ms. Vesprey entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Vesprey is not entitled to the two OCF-18s for psychological treatment recommended by Dr. Shaul. Ms. Vesprey, however, is entitled to the July 16, 2019 OCF-18 for a chronic pain assessment along with interest payable in accordance with s. 51 of the Schedule. Aviva’s request for costs is denied.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7I find that Ms. Vesprey has failed to meet her onus of proving that the July 2, 2018 and September 4, 2019 OCF-18s for psychological treatment are reasonable and necessary on a balance of probabilities.² Ms. Vesprey has, however, proven on a balance of probabilities that the July 16, 2019 OCF-18 for a chronic pain assessment is both reasonable and necessary and, therefore, she is entitled to this treatment plan.

OCF-18 for Psychological Services – July 2, 2018

8The July 2, 2018 OCF-18 was completed by Dr. Shaul and sought funding for ten 1.5-hour counselling sessions to be provided by Dr. Shaul, two hours of “documentation, support activity” and $200.00 for completion of the OCF-18 for a total amount of $2,818.23. The estimated duration of this plan was 10 weeks. The goals of the treatment plan were pain reduction, a return to pre-accident level of psychological functioning and a return to activities of normal living.

9In the injury and sequelae information section, the July 2, 2018 OCF-18 listed adjustment disorders, somatoform disorders and specific (isolated) phobias. In response to activity limitations, the OCF-18 stated, “Ms. Vesprey has symptoms of fear, anxiety, avoidance and nervousness when travelling in a vehicle, sleep difficulties, reduced energy, reduced socializing, changes in appetite, loss of interest and motivation, physical discomfort and difficulty coping with pain, and difficulty with memory and concentration.” The OCF-18 noted that Ms. Vesprey’s improvement since her last treatment plan was that she continues to drive, and that she practices skills of relaxation.

10Aviva relied upon the October 10, 2018 Insurer’s Examination (“IE”) Psychological Assessment Report by Dr. Amena Syed, psychologist,³ in denying the July 2, 2018 treatment plan. In opining that the proposed OCF-18 was not reasonable and necessary, Dr. Syed noted that Ms. Vesprey’s treatment was afforded more than two years ago and, as a result, she was “unable to reconcile the respite in [Ms. Vesprey’s] psychological symptomatology for a period of almost 2 years. Underlying cause is a [sic] suspect and this hiatus cannot be attributed to continued sequelae of the subject accident.”⁴

11Despite her opinion regarding the reasonableness and necessity of the treatment plan, Dr. Syed diagnosed Ms. Vesprey with an adjustment disorder with mixed anxiety and depressed mood,⁵ and noted that Ms. Vesprey’s objective psychometric testing:

(i) indicated that she was suffering from depressogenic thought processes and features of depression;⁶ and

(ii) was remarkable for elevations on scales of anxiety.⁷

12During her assessment, Ms. Vesprey reported to Dr. Syed that she was depressed most days, she cried at least twice a week, she was very sensitive and emotional, she was more frustrated since the accident, she excessively worried about her future as well as her physical and mental health and well-being, had sleep difficulties, felt anxious, had flashbacks and nightmares of the accident and provided a rating of 8/10 in severity of her passenger anxiety. Ms. Vesprey’s score on the Beck Anxiety Inventory test was moderately impaired and her score on the Beck Depression Inventory test was severely impaired, both of which worsened in impairment levels since Dr. Syed’s first assessment of Ms. Vesprey on May 4, 2015.⁸ Dr. Syed noted that while Ms. Vesprey was exhibiting a “cry for help,” she confirmed that Ms. Vesprey’s testing results provided a valid estimation of her current psychological functioning. Dr. Syed also stated, “it is with a high degree of psychological certainty that the subject accident has contributed to [Ms. Vesprey’s] current clinical presentation.”⁹

13It appears as though Dr. Syed did not have the benefit of the June 13, 2018 Progress Report or the clinical notes and records (“CNRs”) from Andrew Shaul Psychology Professional Corporation as these documents were not listed as reviewed in Dr. Syed’s October 10, 2018 report. These documents show that Ms. Vesprey consistently attended treatment at Andrew Shaul Psychology Professional Corporation twice a month until May 2017. Therefore, the June 13, 2018 Progress Report and the CNRs contradict Dr. Syed’s statement that Ms. Vesprey’s psychological treatment was afforded more than two years prior to her assessment which appeared to be the primary basis for her opinion that the proposed OCF-18 was not reasonable and necessary.

14In any event, I find that Ms. Vesprey has failed to prove that the July 2, 2018 treatment plan for psychological treatment is reasonable and necessary for the following reasons:

(i) The CNRs from Andrew Shaul Psychology Professional Corporation show that Ms. Vesprey had a gap in treatment of over one year from May 12, 2017 to June 9, 2018, which was very close in time to when the disputed treatment plan was submitted to Aviva for consideration. This gap in treatment was not addressed in any of the evidence before me in relation to Ms. Vesprey’s alleged need for treatment after the one-year hiatus;

(ii) The OCF-18 sought funding for weekly treatment sessions as the estimated duration of the OCF-18 was 10 weeks and the plan sought funding for 10 treatment sessions. No information was provided as to why an increase in treatment frequency was required in July 2018, almost four years post-accident, when Ms. Vesprey had been attending counselling at a frequency of twice per month up until May 2017;

(iii) It is unclear who authored the June 13, 2018 Progress Report which appeared to be the basis for the recommendation of the additional 10 treatment sessions set out in the July 2, 2018 OCF-18. The report stated that Ms. Vesprey’s “last session with me occurred on June 9, 2018 (my emphasis added),” but both Antoline Thiruchelvam, therapist, and Dr. Shaul signed the report;

(iv) the OCF-18 proposed 10 treatment sessions with Dr. Shaul as he is the only health care provider listed on the July 2, 2018 OCF-18. It appears, however, that Dr. Shaul was not Ms. Vesprey’s treatment provider. On the evidence, Ms. Vesprey was attending treatment sessions with a female treatment provider, presumably Ms. Thiruchelvam, as she co-signed all of the progress reports and interviewed and assessed Ms. Vesprey as part of the initial January 4, 2016 Psychological Report. No information was provided as to the reason for the proposed change in service providers from Ms. Thiruchelvam to Dr. Shaul. There is also no evidence before me to support Ms. Vesprey’s reply submission that Dr. Shaul is “constantly involved”¹⁰ in Ms. Vesprey’s treatment or any information regarding his level of supervision of Ms. Thiruchelvam; and

(v) the CNRs of Dr. Michael Mak, Ms. Vesprey’s family doctor, also do not support a finding that continued psychological treatment was reasonable and necessary in or about July 2018 as the only records in Dr. Mak’s CNRs for 2018 were for blood work. Moreover, the last CNR entry related to Ms. Vesprey’s mood prior to the submission of the July 2, 2018 OCF-18 was on June 14, 2017 when Dr. Mak noted “no decreased mood.”

15For all of these reasons, I find that Ms. Vesprey has not met her burden of proving on a balance of probabilities that the July 2, 2018 OCF-18 is reasonable and necessary and, therefore, she is not entitled to this treatment plan.

OCF-18 for Psychological Services – September 4, 2019

16The September 4, 2019 OCF-18 was also completed by Dr. Shaul and sought funding for ten 1.5-hour counselling sessions with Dr. Shaul, two hours of “documentation, support activity” and completion of the OCF-18 for the total amount of $2,818.23. The estimated duration of this plan was 10 weeks. The injury and sequelae information as well as the goals of the treatment plan were the same as the July 2, 2018 OCF-18. Additionally, the September 4, 2019 OCF-18 contained the same note regarding Ms. Vesprey’s improvement since her last treatment plan that she continues to drive and practices skills of relaxation. This OCF-18 also reported that Ms. Vesprey is learning to be more confident in herself and the additional comments portion stated, “progress report dated September 4.”

17I find that Ms. Vesprey has failed to prove on a balance of probabilities that the September 4, 2019 treatment plan is reasonable and necessary for the following reasons:

(i) Ms. Vesprey did not file a progress report dated September 4, 2019 from Andrew Shaul Psychology Professional Corporation as evidence for the hearing. Further, the last entry in the CNRs from Andrew Shaul Psychology Professional Corporation is dated June 9, 2018, almost one year prior to the submission of this treatment plan. Therefore, Ms. Vesprey filed no documentation in addition to the September 4, 2019 treatment plan from Andrew Shaul Psychology Professional Corporation that supported the recommended treatment;

(ii) Dr. Mak’s CNRs do not support a finding that the September 4, 2019 OCF-18 was reasonable and necessary as there are no entries from October 22, 2018 to June 11, 2019 and, on June 11, 2019, Dr. Mak’s CNR entry noted a discontinuation of Cipralex; and

(iii) Ms. Vesprey was assessed again by Dr. Syed in relation to the September 4, 2019 OCF-18 which resulted in an IE Psychology Assessment Report dated November 27, 2019.¹¹ Dr. Syed diagnosed Ms. Vesprey with an adjustment disorder with mixed anxiety and depressed mood or bereavement, but she did not attribute this diagnosis to the accident. Dr. Syed was of the opinion that there was no accident-related psychological diagnosis as a result of the accident but that Ms. Vesprey’s current psychological functioning was as a result of the introduction of new stressors, including the traumatic loss of her nephew in 2019, whom she described was like a son to her. As a result, Dr. Syed opined that the proposed September 4, 2019 treatment plan was not reasonable and necessary.

18Therefore, based on the reasons set out above, I find that Ms. Vesprey has failed to prove on a balance of probabilities that the September 4, 2019 treatment plan for psychological counselling was reasonable and necessary and, therefore, she is not entitled to this OCF-18.

OCF-18 for a Chronic Pain Assessment

19The July 16, 2019 OCF-18 was completed by Dr. Doreen Payan, chiropractor, and sought funding for a chronic pain assessment. The injury and sequelae information portion of the OCF-18 listed the following: concussion; sprain and strain of shoulder joint; sprain and strain of other and unspecified parts of the foot; headache; sprain and strain of cervical spine; sleep disorder, unspecified; adjustment disorder; persistent somatoform pain disorder; and specific (isolated) phobias. The goals of this treatment plan were to determine the biological mechanism of pain through documentation of pain location, intensity, quality and onset/duration, functional ability and goals, and psychological/social factors such as depression or post-traumatic stress disorder (“PTSD”). The OCF-18 also stated, “it is important that chronic pain is managed with the objective of minimizing or avoiding its associated long-term sequelae. Early and effective multimodal treatment strategies, that controls pain intensity, are essential to improving outcomes and returning clients to normal levels of function.” In the end, the OCF-18 stated that a chronic pain assessment was necessary as it was the only way to determine whether Ms. Vesprey suffered from chronic pain syndrome given the length of time and duration of Ms. Vesprey’s complaints.

20One of the purposes of a chronic pain assessment, in my opinion, is to diagnose chronic pain syndrome. Therefore, in determining the reasonableness and necessity of a treatment plan proposing a chronic pain assessment, I must consider whether or not it is reasonably possible that Ms. Vesprey may have chronic pain syndrome.¹²

21Ms. Vesprey submitted that I should rely upon the reconsideration decision of T.S. v. Aviva General Insurance Canada¹³ in determining the reasonableness and necessity of the July 16, 2019 OCF-18. In T.S. v. Aviva, the Executive Chair accepted that chronic pain is a condition that persists for three to six months after an initial trigger or injury.¹⁴

22Aviva, on the other hand, submitted that whether or not it was possible that Ms. Vesprey had chronic pain should be assessed against the six criteria described in the American Medical Association (“AMA”) Guides,¹⁵ which require at least three of the following criteria to be met for a diagnosis of chronic pain:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

23I find that T.S. v. Aviva and the six criteria set out in the AMA Guides can be read harmoniously and both are persuasive in determining whether or not it was reasonably possible that Ms. Vesprey suffered from chronic pain syndrome such that the chronic pain assessment was reasonable and necessary. In T.S. v. Aviva, the Executive Chair’s description of chronic pain encompassed adverse effects on an individual's well-being. As such, the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool to determine if an individual’s pain is adversely affecting their functional capacity such that it would be reasonably possible that the individual was suffering from chronic pain syndrome and therefore warranting a chronic pain assessment.

24In denying the chronic pain assessment, Aviva relied upon the September 3, 2019 IE Medical Physician Assessment report by Dr. Farhan Siddiqui, physician.¹⁶ While Dr. Siddiqui opined that the proposed chronic pain assessment was not reasonable and necessary, I place little weight on his opinion for two reasons.

25First, I find Dr. Siddiqui’s report to be contradictory in that he diagnoses Ms. Vesprey with a cervical strain/sprain, left foot strain/sprain, left elbow strain/sprain and a lumbar strain/sprain “as a result of the subject accident,”¹⁷ but later states in his report that, “the claimant did not suffer an impairment as a direct result of the accident.”¹⁸

26Second, Ms. Vesprey reported pain in her posterior cervical spine, trapezius muscles bilaterally, the left shoulder, lumbar spine, in the dorsum of her left foot and left elbow to Dr. Siddiqui.¹⁹ Ms. Vesprey also reported sleep disturbances as a result of her pain.²⁰ On his physical exam, Dr. Siddiqui noted that Ms. Vesprey reported pain upon palpation in the L2-5 paravertebral aspects of her lumbar spine, tenderness upon palpation in the dorsum of her left foot and noted that while Ms. Vesprey’s range of motion movements and strength testing presented normal findings, that some of her movements were painful. Despite these pain complaints and observations, Dr. Siddiqui made no comments or findings regarding chronic pain despite the very purpose of his assessment was to determine the reasonableness and necessity of a proposed chronic pain assessment.²¹ Moreover, his silence on this issue of chronic pain is questionable given his statement in his report that he had “extensive experience in diagnosing and managing both acute and chronic pain syndromes.”²²

27I find, however, that Dr. Siddiqui’s September 3, 2019 report demonstrates that Ms. Vesprey’s pain complaints persisted well beyond the three to six-month period after the accident and that these pain complaints were accompanied by Ms. Vesprey’s self-reports of functional limitations as a result of pain. For example, Ms. Vesprey reported to Dr. Siddiqui that with regards to her housekeeping duties she is slower, cannot sustain activity for extended periods, takes frequent breaks and receives assistance from her husband.²³

28Ms. Vesprey also reported constant pain in her head, neck, shoulders, left shoulder blade and lower back to Dr. Syed in November 2019.²⁴ Ms. Vesprey further reported to Dr. Syed a reduction in prolonged sitting, walking and organizing materials at work as a result of her pain,²⁵ that she had difficulty with her housework and experienced sleep difficulties as a result of her pain.²⁶ Finally, Dr. Syed noted that pain was a feature in Ms. Vesprey’s presentation and that Ms. Vesprey would self-limit her activities in the presence of pain with a reliance upon medication.²⁷

29Even though no CNRs of Dr. Mak were submitted as evidence beyond June 11, 2019, at which time many of Ms. Vesprey’s treatment modalities were noted as discontinued, Ms. Vesprey underwent an independent chronic pain assessment with Dr. Tajedin Y. Getahun, orthopaedic surgeon, on August 13, 2019 despite Aviva’s denial. Following this assessment, Dr. Getahun diagnosed Ms. Vesprey with chronic pain syndrome.²⁸ While it is unclear why Dr. Getahun relied upon the criteria set out in the 4th edition of the AMA Guides to diagnose Ms. Vesprey with chronic pain syndrome as opposed to the generally referred to criteria in the 6th edition of the AMA Guides as set out in paragraph [22] above, it is clear that Ms. Vesprey reported to Dr. Getahun ongoing pain in her back, neck and in both shoulders and that she experienced pain when completing her housekeeping duties.

30I find that Ms. Vesprey was consistent in her reporting of pain to all of the medical professionals that assessed her in or about the time that the July 16, 2019 OCF-18 was submitted to Aviva for consideration. Ms. Vesprey’s self-reports are also consistent with the information on the OCF-18 under the activity limitation portion which stated, “Ms. Vasprey [sic] is still limited with respect to daily living tasks…has difficulty with sleeping. She reports difficulty with housekeeping tasks. She is resuming activities of daily living and functionality tasks, however pain symptoms are easily aggravated.”

31Therefore, I find that Ms. Vesprey’s continued pain reporting and functional difficulties support the reasonableness and necessity of the proposed chronic pain assessment to achieve one of the stated goals of the OCF-18 of determining multimodal treatment strategies to control pain and to return Ms. Vesprey to normal levels of function.

32I also find that it is likely that Ms. Vesprey may meet criteria 1, 3, 4 and 6 of the AMA Guides set out in paragraph [22] above for a diagnosis of chronic pain syndrome for the following reasons:

(i) Dr. Syed diagnosed Ms. Vesprey with an adjustment disorder with mixed anxiety and depressed mood in her October 10, 2018 IE report. In this same report, Dr. Syed opined that the accident was found to have contributed to Ms. Vesprey’s diagnosis. In my opinion, Dr. Syed’s diagnosis and opinion that the accident contributed to Ms. Vesprey’s psychological presentation indicates that Ms. Vesprey developed anxiety after the accident;

(ii) even though Ms. Vesprey returned to full-time work and her regular work duties within months of the accident, there is evidence before me that Ms. Vesprey withdrew from social milieu after the accident. Ms. Vesprey reported to Dr. Syed, Dr. Getahun, Dr. Shaul and/or Ms. Thiruchelvam that she socialized less after the accident. Ms. Vesprey also reported to Dr. Syed, Dr. Shaul and/or Ms. Thiruchelvam that she gave up her hobby of event planning and party decorating after the accident as she was no longer physically able to do it; and

(iii) although Dr. Syed’s November 27, 2019 report was not in existence at the time the proposed chronic pain assessment was submitted to Aviva for consideration, Dr. Syed’s statement in the November 27, 2019 IE report that Ms. Vesprey was self-limiting her activities in the presence of pain with a reliance upon medication also support a finding that Ms. Vesprey may satisfy the first and third AMA Guides criteria as she was avoiding activities due to pain and may have been dependant on medication.

33I also disagree with Aviva that a proposed chronic pain assessment is not reasonable and necessary because Ms. Vesprey had already undergone a chronic pain assessment with Dr. David Lipson, physiatrist. The last CNR entry by Dr. Lipson was dated January 31, 2017, over two and a half years prior to the submissions of the proposed treatment plan. Dr. Lipson’s CNRs contained no diagnosis of chronic pain syndrome but did include a January 2017 prescription for Ms. Vesprey to attend physiotherapy in which Dr. Lipson also recommended avoiding passive modalities and developing a home exercise program. Therefore, I find that Dr. Lipson’s treatment recommendations were not multimodal treatment strategies which was explained as one of the goals of the proposed chronic pain assessment and, therefore, the chronic pain assessment was still warranted.

34Further, I also disagree with Aviva that Ms. Vesprey should not be entitled to the chronic pain assessment because it was recommended by Dr. Payan, a chiropractor. I find that Dr. Payan’s recommendation for the chronic pain assessment in effect supports the reasonableness and necessity of the proposed assessment because Dr. Payan, as a chiropractor, cannot diagnose. Therefore, I find that it was reasonable for Dr. Payan to refer Ms. Vesprey to the appropriate medical professional that could make a chronic pain syndrome diagnosis if it was substantiated.

35As the Tribunal has accepted that chronic pain is a condition that persists for three to six months after an initial trigger or injury, I find that it is reasonably possible that Ms. Vesprey suffered from chronic pain syndrome at the time that she submitted the OCF-18 for a chronic pain assessment to Aviva given her ongoing pain complaints and painful functioning almost five years post-accident. This finding is supported by the reasonable possibility that Ms. Vesprey would also meet at least three of the six AMA Guides criteria for a diagnosis of chronic pain syndrome. Therefore, I find that Ms. Vesprey has proven on a balance of probabilities that the July 16, 2019 treatment plan for the chronic pain assessment is both reasonable and necessary.

Interest

36Ms. Vesprey is entitled to interest in accordance with s. 51 of the Schedule for the July 16, 2019 OCF-18 for a chronic pain assessment.

Costs

37In its submissions, Aviva requests its costs in the amount of $300.00 as against Ms. Vesprey given that Ms. Vesprey violated the Tribunal’s May 11, 2020 Case Conference Report and Order by:

(i) Failing to produce to Aviva CNRs from Andrew Shaul Psychology Professional Corporation and the August 15, 2019 Independent Chronic Pain Assessment report by Dr. Getahun prior to September 14, 2020, the date that Ms. Vesprey’s written hearing submissions were due; and

(ii) Submitting 10 pages of single-spaced written hearing submissions rather than 10 pages of double-spaced submissions.

38Rule 19.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) allows a party to make a written request for costs at a hearing or at any time before a decision is released. Therefore, Aviva’s requests for costs is properly before me.

39I find that Aviva is not entitled to its costs of this proceeding for the following reasons:

(i) There was no order for Ms. Vesprey to produce any documentation to Aviva in the Tribunal’s May 11, 2020 Case Conference Report and Order. Instead, Ms. Vesprey was to file her written submissions and evidence by September 14, 2020 and, therefore, Ms. Vesprey was not in breach of the order regarding productions;

(ii) While I agree that Ms. Vesprey failed to adhere to the requirement that her written submissions be double spaced, I do not find that this conduct meets the high threshold of acting unreasonably, frivolously, vexatiously or in bad faith; and

(iii) If Aviva was prejudiced in any way by Ms. Vesprey’s submissions almost doubling the permitted length, a motion could have been brought by Aviva to request additional pages for its submissions. As no such relief was sought by Aviva, I find that Aviva was not prejudiced by Ms. Vesprey disregarding the spacing requirements for her submissions. Therefore, this situation is distinguishable from 18-001031 v Aviva Insurance Canada,²⁹ which was relied upon by Aviva, as the Tribunal found in that decision that the insurer was seriously prejudiced by the applicant’s conduct.³⁰

CONCLUSION

40For the reasons outlined above, I find that Ms. Vesprey:

(i) Is not entitled to the July 2, 2018 and September 4, 2019 OCF-18s for psychological treatment;

(ii) Is entitled to the July 16, 2019 OCF-18 for a chronic pain assessment along with interest payable in accordance with s. 51 of the Schedule; and

(iii) Aviva’s cost request is denied.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24. As I have found that Ms. Vesprey is not entitled to either OCF-18 for psychological treatment, I find that I do not need to address Aviva’s request to offset any amounts payable under these treatment plans from an alleged overpayment that Aviva has made to Andrew Shaul Psychology Professional Corporation. Aviva alleged that an overpayment for services was made as a result of Ms. Vesprey receiving psychotherapy counselling as opposed to psychological counselling and I make no findings or orders on this issue.
3. 3Written Submissions of the Respondent, tab 11.
4. 4Ibid. at page 24.
5. 5Ibid. at page 23.
6. 6Ibid. at page 22.
7. 7Ibid.
8. 8Ibid. at page 19.
9. 9Ibid. at page 23.
10. 10Applicant’s Reply Submissions, page 4.
11. 11Written Submissions of the Respondent, tab 12.
12. 12See 16-001934 v Aviva Insurance Canada, 2017 CanLII 19197 (ON LAT) (“16-001934”).
13. 132018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
14. 14Ibid. at para. 19.
15. 15American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
16. 16Written Submissions of the Respondent, tab 15.
17. 17Ibid. at page 7.
18. 18Ibid. at page 8.
19. 19Ibid. at pages 5-6.
20. 20Ibid.
21. 21Ibid. at page 2.
22. 22Ibid.
23. 23Ibid. at page 4.
24. 24Supra note 11, page 21.
25. 25Ibid. at page. 22.
26. 26Ibid. at page 24.
27. 27Ibid. at pages 33-35.
28. 28Independent Chronic Pain Assessment report by Dr. Tajedin Y. Getahun dated August 15, 2019, Applicant’s Submissions, tab 4.
29. 292019 CanLII 22213 (ON LAT)(“18-001031”). 18-001031 is also distinguishable because in that decision, the Case Conference Order required the applicant to file any new evidence on the respondent by a certain date. As stated in paragraph 40 above, the May 11, 2020 Case Conference Report and Order in this matter contained no such provision.
30. 30Ibid. at para. 31.