Koujekian v. Aviva Insurance Company of Canada, 2021 CanLII 314

Citation: Koujekian v. Aviva Insurance Company of Canada, 2021 ONLAT 19-007263/AABS

Released Date: 01/05/2021

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:

Shoghig Koujekian

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Gina Nardella, Counsel

Heard by Way of Submissions In Writing

REASONS FOR DECISION AND ORDER

OVERVIEW

1Shoghig Koujekian (“applicant”), was involved in an automobile accident on November 22, 2016(“accident”). The applicant was 37 years old at the time of the accident.

2The applicant sought benefits from Aviva Insurance Company of Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The respondent submits that the applicant is not entitled to the three disputed treatment plans because they are not reasonable and necessary. The applicant has applied to the Tribunal for dispute resolution.

ISSUES

4The issues to be decided in this hearing are:

i. Is the applicant entitled to the cost of psychometric testing in the amount of $2,494.54 recommended by Dr. John Gilman in a treatment plan (OCF-18) submitted on July 18, 2017 and denied on July 31, 2017?

ii. Is the applicant entitled to the cost of a neuro-psychological examination in the amount of $2,494.54 recommended by Dr. John Gilman in an OCF-18 with a report dated October 12, 2017?

iii. Is the applicant entitled to the cost of a neuro-psychological intake interview in the amount of $2,714.54 recommended by Dr. John Gilman in an OCF-18 submitted on July 18, 2017 and denied on July 31, 2017?²

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

PRELIMINARY ISSUES – PRODUCTION OF DOCUMENTS

5The applicant submits that the respondent has failed to produce log notes by May 18, 2020 as required by the Tribunal’s May 18, 2020 Order and as a result the respondent is in “non-compliance and breach of an order”. The respondent states that the log notes have now been produced but does not say when. The applicant did not file any reply submissions disputing the respondent’s statement that the log notes have now been produced.

6In the absence of any response from the applicant to the contrary, I accept the respondent’s statement that the log notes have now been produced. If the respondent did not produce the log notes by the time specified, then the respondent likely was in breach of the Tribunal’s May 18, 2020 Order for a time. Breach of a Tribunal Order is always a concern. However, here the applicant did not request any remedy and as a result, I decline to impose one.

7The respondent submits that the applicant produced documents in her hearing submissions for the first time, specifically tabs A,B,E and pages 2-5 and 32 of tab L (“applicant’s documents”). The deadline for production of the applicant’s documents was June 17, 2020 according to the Tribunal’s April 17, 2020 Order. The respondent requests these documents be disregarded. The applicant did not file any reply submissions disputing the respondent’s submission.

8In the absence of any response from the applicant to the contrary, I accept the respondent’s statement that the applicant’s documents were not produced within the time required. Again, breach of a Tribunal Order is always a concern. However, the remedy proposed by the respondent, specifically that the applicant’s documents be disregarded, is not reasonable or proportionate in the circumstances. The respondent could have brought a motion seeking an extension of time to file it’s hearing submissions but did not do so. Instead, the respondent chose to proceed with it’s hearing submissions. Accordingly, I decline to disregard the applicant’s documents in this hearing.

RESULT

9The applicant is not entitled to the three disputed treatment plans as the applicant has failed to prove that they are reasonable and necessary for injuries directly attributable to the accident. No interest is payable.

LAW

10Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.³

ANALYSIS

Are the Treatment Plans For Psychometric Testing, Neuro-Psychological Examination and Neuro-Psychological Intake Interview Reasonable and Necessary?

11The applicant submits that the three disputed treatment plans are reasonable and necessary as her injuries have not resolved and in fact have deteriorated with the passage of time to the point that she was later diagnosed with post-concussion, chronic headaches and neck pain, left shoulder pain.

12The respondent submits that the three disputed treatment plans are not reasonable and necessary. The respondent relies on the opinions of its assessors Dr. Josefchak, orthopaedic surgeon, Dr. Verity, neurologist and Dr. Friesen, neuropsychologist all of whom assessed the applicant in September and October 2017 and opined that there is no accident-related ongoing injury to treat.

13All three disputed treatment plans were made by Dr. John Gilman, applicant’s psychologist in July 2017 who indicates that all three treatment plans are required to complete a validated neuropsychological evaluation. Each treatment plan describes the applicant’s injuries from the accident as “other specified mental disorders due to brain damage and dysfunction and to physical disease”, concussion, headache and headache syndromes, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, sprain and strain of sacroiliac joint, lumbar spine and “other and unspecified parts of knee” and bursitis of shoulder. Each treatment plan has the same goal, specifically “a validated neuropsychological evaluation is recommended”.

14The psychometric testing includes one hour of brokerage service, four hours of preparation, three hours of assessment, six hours of testing, and $400.00 of documentation totalling $2,494.54. The neuro-psychological examination proposes includes ten hours of testing and four hours of documentation and $400.00 of documentation totalling $2494.54. The neuro-psychological intake interview includes 14 hours of documentation, support activity, $400.00 of documentation and claimant transportation of $220.00 totalling $2,714.54.

15I find that the applicant is not entitled to any of these three disputed treatment plans because the applicant has not provided sufficient evidence to meet her burden of proof that any of them are reasonable and necessary. The following are my reasons.

16Although Dr. Gilman describes one of the applicant’s injuries as “other specified mental disorders due to brain damage and dysfunction and to physical disease”, there is no indication of “mental disorders” as a result of the accident in the records of any of the applicant’s physicians. On the day of the accident the applicant was diagnosed by Dr. Willms, emergency department physician, with “concussion precautious” and “minor HI”. The applicant’s family physician Dr. Sofronva diagnosed concussion in November and December, 2016 and stiffness over the left side of neck and MSK pain March 7, 2017. In June, 2017 Dr. Sofronva noted vertigo and dizziness, MSK pain from the accident. January 26, 2018 Dr. Sofronva noted headache, dizziness and MSK pain from the time of the accident. Dr. Bell, another family physician, saw the applicant June 16, 2018 but declined to diagnose instead noting chronic neck pain. September 18, 2019 Dr. Bell diagnosed chronic headaches and referred the applicant to a neurologist.

17The December 22, 2016 OCF-3, disability certificate by Dr. Kaushal, applicant’s chiropractor, indicates the anticipated duration of the applicant’s disability as a result of the accident is temporary, specifically 9-12 weeks.

18There is no imaging indicating head injuries that would warrant psychometric testing or neuro-psychological examination and neuro-psychological intake interview. April, 2017 imaging ordered by Dr. Sofronva of the cervical spine was essentially normal. Dr. Ren, applicant’s neurologist, reports January, 2020 that a CT of the applicant’s head in March, 2018 was normal. Dr. Ren in 2020 does not definitively diagnose but instead concludes the applicant “likely” has post concussion syndrome, post traumatic headaches, chronic migraine-type but qualifies the diagnosis by adding “further investigations are needed for differentials”. Dr. Ren ordered further investigations, specifically lab and brain MRI. There is no evidence before me that these investigations took place.

19The applicant’s family physicians do not recommend the three disputed treatment plans or the treatments they propose. Neither Dr. Sofronva or Dr. Bell referred the applicant to a psychologist or recommended psychometric testing or neuro-psychological examination.

20The respondents three physicians opined that there are no ongoing accident-related injuries to treat. Dr. Josefchak, orthopaedic surgeon, assessed the applicant in September, 2017 with respect to income replacement benefits. Dr. Josefchak diagnosed the applicant with myofascial strain of the cervical spine and possible closed head injury as a result of the accident. Dr. Josefchak opined that based on his evaluation, aside from a slight loss of motion of the left shoulder, no physical impairment is presently identified as a direct consequence of the accident.

21Dr. John, neurologist, assessed the applicant in October 2017 with respect to income replacement benefits. Dr. John opined that the applicant at worst may have suffered a mild concussion which is resolved, she does not endorse any symptoms of post-concussion and her headache is cervicogenic and she has cervical strain. Dr. John recommended no further neurological testing at this time.

22Dr. Friesen, neuropsychologist, assessed the applicant in September and October, 2017 with respect to income replacement benefits. Dr. Friesen opined that from a psychological perspective, there was no evidence of psychological impairment as a result of the accident. Following testing, Dr. Friesen also opined that from a neuropsychological perspective there was no clear or consistent evidence of any cognitive impairment as a result of the accident. Dr. Friesen also opined that it was unlikely the applicant sustained a mild traumatic brain injury, and in the event that she did, it would have resolved by the time of assessment. Further, Dr. Friesen opined April 20, 2020 that his opinion was unchanged following the review of new documentation including the report of Dr. Ren and the records of Dr. Bell.

23Dr. Josefchak, Dr. John and Dr. Friesen, taken together have more specialized brain education and experience than Dr. Gilman, Dr. Sofronva and Dr. Bell. Further, with their varied specialities and multidisciplinary approach, Drs. Josefchak, John and Friesen have more thoroughly assessed the applicant than Dr. Gilman and their respective reports support each other. As a result, I prefer the evidence of Drs. Josefchak, John and Friesen over that of Dr. Gilman and Drs. Sofronva and Bell and over the less specific opinion of Dr. Ren who requested further investigation before differentiating.

24I am not satisfied that the goals of the three disputed treatment plans are reasonable and necessary. The weight of the medical evidence indicates that the applicant has no accident-related ongoing brain injury or concussion or post-concussion syndrome to treat and that the applicant’s alleged self-reported symptoms are not caused by accident-related injuries to the applicant. The applicant has the burden of bringing forward persuasive medical evidence demonstrating that the goals of this treatment plan are reasonable and necessary as a result of injuries sustained in the accident, that the goals are being met to a reasonable degree and that the overall cost is reasonable and she has not satisfied that burden.

25As a result, I find these three disputed treatment plans are not reasonable or necessary.

Additional Issue Raised by Applicant – Special Award

26The applicant has requested a special award pursuant to s. 10 of Ontario Regulation 664 which provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I decline to add the applicant’s request for a special award as an issue or to decide it for the following reasons.

27The applicant’s request for a special award is not one of the issues referred to me for resolution by the Tribunal’s November 21, 2019 case conference Order. It is unfair to the respondent and to the Tribunal’s process to attempt to add this issue now without prior notice to the respondent or without the agreement of the respondent given that the issues for the hearing were identified and agreed to by both parties at the case conference.

28The applicant could have brought a motion prior to the hearing seeking to add this as an additional issue at the hearing but did not do so.

29However, I note that had this issue been before me, I would not have been inclined to make a special award given that no benefits are payable. Further, there is no evidence that the respondent acted egregiously or in bad faith throughout the adjustment of the claim as suggested by the applicant in support of the request for a special award.

Interest

30As no benefits are payable, no interest is payable.

ORDER

31For the reasons outlined above, the applicant is not entitled to any of the three disputed treatment plans. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Although the Tribunal’s November 21, 2019 case conference Order refers to the three disputed treatment plans as having different dates, the respondent’s evidence shows that all three disputed treatment plans are dated July 7, 2017, were all submitted on July 18, 2017 and all denied July 21, 2017.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).```