Citation: Kenn v. Aviva Insurance Company of Canada, 2021 ONLAT 20-004058/AABS

Release date: 09/16/2021

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:

Dale Kenn

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Savannah V. Chorney, Counsel

For the Respondent:

Nathan Fabiano, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Dale Kenn, was injured in an automobile accident on August 4, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva Insurance Company of Canada, the respondent.

2The respondent denied the applicant’s claim for psychotherapy services and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on September 18, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to $2,818.14 for psychotherapy services recommended by Dr. Neeru Sharma in a treatment plan (OCF-18) dated June 27, 2019?

(ii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant has not met his burden of proving that the June 27, 2019 OCF-18 is reasonable and necessary on a balance of probabilities. As no benefits are owing, there is no basis to make an award and no interest is payable. The respondent’s request for costs is also denied.

Psychotherapy Services

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 the applicant has failed to meet his onus of proving that the proposed psychotherapy sessions are reasonable and necessary on a balance of probabilities.²

8The June 27, 2019 OCF-18 was completed by Dr. Neeru Sharma, psychologist, and sought funding for twelve 75-minute sessions of psychotherapy to be provided by Dr. Sharma, 2.5 hours for a clinical progress report, and completion of the OCF-18. The OCF-18 noted that the applicant had already received 51 visits and described the applicant’s progress as good, but slow. The estimated duration of the treatment plan was 24 weeks. The goals of the treatment plan were to further improve the applicant’s coping with pain, decrease depression and anxiety, further improve stress management skills, provide supportive counselling to help cope with problems arising due to the accident, and to return as closely as possible to a pre-accident level of psychological functioning.

9In the additional comments portion, the OCF-18 reported that the applicant continued to feel stressed and upset about the impact of the accident on his life. It noted that the applicant had some improvement in his low frustration tolerance and irritability, but that he often expressed unhappiness about his current situation and had difficulty coping with his mood and stressors. The OCF-18 reported, “it is important that he continue to attend individual psychotherapy sessions as the sessions help him to keep the stress under control.”

10The only contemporaneous evidence to the June 27, 2019 OCF-18 submitted by the applicant was a Medical-Legal Psychological Assessment Report dated September 2, 2019 by Dr. Sharma.³ In this report, Dr. Sharma stated that the applicant’s current diagnoses as a result of the accident were an adjustment disorder and a somatic symptom disorder with prominent pain.⁴ Although the applicant reported to Dr. Sharma that his mood had improved, that he did not feel very sad or depressed, and that he no longer got very angry, the applicant still reported feeling frustrated and being easily upset.⁵ Dr. Sharma opined that the applicant continued to have some difficulties in adjusting to the changes in his life and, as a result, it was essential that the applicant continue to attend individual psychotherapy sessions to help him cope with his mood changes, his significant impairments, and the extreme changes in his lifestyle.⁶ Finally, Dr. Sharma noted that if there was no improvement in the applicant’s pain, that his resulting emotional distress would likely persist indefinitely at some level, and should be considered a permanent impairment.⁷

11I place little weight on Dr. Sharma’s September 2, 2019 report in determining the reasonableness and necessity of the disputed treatment plan because Dr. Sharma is silent on the necessity of further treatment given that the applicant had already received 51 sessions of psychotherapy. Further, while Dr. Sharma recommends ongoing treatment in her report, she failed to provide any specifics as to the frequency or the duration of this recommendation, which is significant given that the accident happened almost four years prior to the date of the OCF-18.

12I acknowledge that the applicant’s psychological testing scores improved when compared with Dr. Sharma’s first report dated June 21, 2016.⁸ However, the only other evidence from Dr. Sharma that I have before me dated between the two reports is a September 30, 2018 Psychological Treatment Status Report.⁹ In this report, Dr. Sharma noted that the applicant was upset, had low frustration tolerance, was irritable, and had difficulty coping with his mood and stressors that occurred since the accident.¹⁰ This Status Report, dated almost one year prior to the disputed treatment plan, recommended a further 16 sessions of psychotherapy on a bi-weekly basis to help the applicant, “cope with his ongoing difficulties of feelings of depression, symptoms of anxiety, frustration, and feeling of loss of control over his life.”¹¹ Dr. Sharma noted that the treatment sessions would focus on helping the applicant better cope with environmental stressors, improve his anger and irritability, to accept his current limitations, goal setting and further social/leisure activation.¹²

13Given that the goals and the stated difficulties set out in the September 30, 2018 report are similar to those listed in the disputed OCF-18, Dr. Sharma’s September 2, 2019 report fails to address how continued psychotherapy sessions would achieve any further improvement. This information is noticeably absent from Dr. Sharma’s report especially considering her comments regarding the permanency of the applicant’s emotional state.

14It is also unclear when the applicant had last received psychotherapy sessions from Dr. Sharma as no sign-in sheets or clinical notes and records (CNRs) from Dr. Sharma were submitted as evidence. Dr. Sharma’s September 2, 2019 report also does not contain this information.

15The applicant requested that I place more weight on Dr. Sharma’s September 2, 2019 report than the August 14, 2019 Psychology Insurer’s Examination (IE) Assessment and the April 15, 2021 Psychological IE Assessment Reports by Dr. Marc Mandel, psychologist.¹³¹⁴ Dr. Mandel’s April 15, 2021 report is not contemporaneous to the date of the treatment plan and, therefore, I give it little weight in determining the reasonableness and necessity of the proposed psychotherapy sessions.

16However, I agree with the applicant that despite Dr. Mandel acknowledgment in his August 14, 2019 report of the applicant’s ongoing adjustment difficulties as a result of the accident, Dr. Mandel declined to make a DSM-V diagnosis attributable to the accident. This inconsistency in Dr. Mandel’s August 14, 2019 report, however, does not absolve the applicant’s burden to prove the reasonableness and necessity of the proposed treatment. In this matter, there is simply no compelling evidence before me as to the reasonableness and necessity of ongoing, bi-weekly psychotherapy sessions after 51 previous sessions, almost four years post-accident.

17On the evidence, I find that the applicant has failed to meet his burden of proving on a balance of probabilities that the June 27, 2019 OCF-18 is reasonable and necessary.

Award

18Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed the payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

19As I have found that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

Interest

20As there are no benefits owing, no interest is payable.

Costs

21In its submissions, the respondent submitted that it is entitled to its costs in this matter as a result of having to bring an urgent motion to the Tribunal due to the applicant’s “attempt to hide the existence of an expert report until two weeks before an insurer’s hearing submissions are due.”¹⁵

22Rule 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, the respondent’s requests for costs is properly before me.

23The respondent’s requests for costs, however, is denied. Not only did the respondent fail to specify the amount of costs it was seeking in its submissions, the representation that the applicant was attempting to “hide” Dr. Sharma’s September 2, 2019 report appears to be a mischaracterization. The January 7, 2021 Motion Order indicated that the applicant failed to serve Dr. Sharma’s September 2, 2019 report because of an administrative error and not as an attempt to conceal evidence. Further, the applicant consented to an adjournment of the hearing to allow the respondent an opportunity to review the report and to obtain an addendum report.

24Therefore, I find that the applicant’s conduct has not risen to the high threshold of being unreasonable, frivolous, vexatious or in bad faith such that an order for costs is warranted.

CONCLUSION

25For the reasons outlined above, I find that:

(i) The applicant is not entitled to the June 27, 2019 OCF-18;

(ii) The applicant is not entitled to an award under Regulation 664;

(iii) No interest is payable;

(iv) The respondent’s requests for costs is denied; and

(v) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
3. 3Written Submissions of the Applicant, tab 19.
4. 4Ibid. at page 19.
5. 5Ibid. at page 14.
6. 6Ibid. at page 28.
7. 7Ibid. at page 27.
8. 8Written Submissions of the Applicant, tab 16.
9. 9Written Submissions of the Applicant, tab 17.
10. 10Ibid. at page 2.
11. 11Ibid.
12. 12Ibid.
13. 13Written Submissions of the Respondent, tab 1.
14. 14Written Submissions of the Respondent, tab 3.
15. 15Written Submissions of the Respondent, para. 34.