N.C. v. Aviva Insurance Canada, 2021 CanLII 90553

N.C. v. Aviva Insurance Canada

Citation: N.C. v. Aviva Insurance Canada, 2021 ONLAT 19-001405/AABS

Release date: 09/21/2021

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:

N.C.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Ron Folkes, Counsel

For the Respondent:

Brittany Tinsley, Counsel

HEARD: by Videoconference:

March 22 to 26, 2021

OVERVIEW

1N.C. (the “applicant”) was involved in an automobile accident on December 6, 2016, and sought benefits from Aviva Insurance Canada (the “respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The respondent denied the applicant’s entitlement to an Income Replacement Benefit (“IRB”) and a psychological assessment. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The respondent initially paid the applicant an IRB in the amount of $400.00 per week until May 4, 2018, when it determined that the applicant no longer met the test for entitlement.

3The applicant submits that, to date, he has been unable to successfully return to work as a real-estate agent because of his accident-related physical and psychological impairments. He asserts that he meets the eligibility criteria for continuing entitlement to IRBs. Further, he maintains that the psychological assessment is reasonable and necessary as his psychological impairment remains unresolved and he requires further treatment.

4While the respondent acknowledges that the applicant sustained physical and psychological impairments as a result of the accident, it maintains that these impairments were not the reason for the applicant’s inability to work post-accident. Rather, it submits that the applicant is not credible as he misrepresented his pre and post-accident employment to all assessors. Further, his assessors relied on his self-reports and did not review any employment documentation in rendering their opinions. Therefore, their opinions should be given little weight. In addition, it argues that the psychological assessment is not reasonable and necessary as it is a duplication of services.

5The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a five-day video conference hearing. On behalf of the applicant, I heard the testimony of the applicant, the applicant’s wife, Dr. Nathanson, chiropractor, Dr. Davila, psychologist, Farhana Jessa, occupational therapist and Dr. Rivlin, chronic pain specialist. On behalf of the respondent, I heard the testimony of insurer examination (IE) assessors Dr. Dessouki, orthopaedic surgeon and Dr. Mor, psychologist.

ISSUES IN DISPUTE

6I have been asked to decide the following issues:

1. Is the applicant entitled to an IRB in the amount of $400.00 per week, from May 4, 2018 to date and ongoing?
2. Is the applicant entitled to $2,000.00 for a psychological assessment, recommended by Dr. Davila in a treatment plan denied on June 22, 2019?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7For the reasons that follow, I find the following:

1. The applicant is not entitled to payment of IRBs in the amount of $400.00 per week from May 4, 2018 to date and ongoing, or interest on overdue payments.
2. The applicant is entitled to the psychological assessment in the amount of $2,000.00 recommended by Dr. Davila in the treatment plan denied on June 22, 2019, plus interest payable pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUE

8The applicant tried to submit an addendum report authored by Dr. Nathanson on the eve of the hearing. The applicant provided no explanation for the late commission of this report. The respondent opposed the admission of this report on the basis that it had not been properly served pursuant to the Tribunal’s Common Rules of Practice and Procedure, nor did it comply with the deadline provided for in the Tribunal’s case conference report and order for the exchange of evidence. The respondent argued that it would not be procedurally fair to admit an expert report that it has never reviewed. Further, the applicant’s request to admit the report at this stage amounts to trial by ambush, as the respondent has a right to understand the case against it. In response, counsel for the applicant did not make any arguments to support why the report should be admitted. In the absence of further submissions by the applicant as to why the report should be admitted, I declined the request to admit the addendum report of Dr. Nathanson.

ANALYSIS

Is the applicant entitled to an IRB in the amount of $400.00 per week, from May 4, 2018 to date and ongoing?

9On December 6, 2016, the applicant was involved in an accident in which his vehicle t-boned a van making a left-hand turn at an intersection. Paramedics attended the scene, however, the applicant refused immediate medical attention. He was diagnosed with soft-tissue injuries resulting in chronic pain and a psychological impairment as a result of the accident. He maintains that he has not returned to work as a real-estate agent at his pre-accident level.

10Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential duties of their pre-accident employment.

11After the 104-week mark, the test for ongoing entitlement to IRBs becomes more stringent. At this point post-accident, the insured must prove that they suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

12Since the time periods at issue involve different thresholds for entitlement, I will assess each in turn.

Pre-104-week IRBs

13The case law supports that in assessing an insured’s entitlement to an IRB it is first necessary to determine the essential tasks of their pre-accident employment. The second part of the inquiry involves determining whether the accident caused the impairments and to what extent the impairments resulted in the individual’s inability to work. I must first review the essential tasks of the applicant’s employment and determine whether his accident-related impairments resulted in a substantial inability to complete these tasks. Based on the evidence before me, I find the essential tasks of a real-estate agent to include the following:

a) Representing buyers and sellers in the sale or purchase of their home;

b) Driving between homes and offices to meet with clients to show properties;

c) Writing plans/contracts and monitoring closings;

d) Researching/presenting and posting listings for clients;

e) Marketing and actively pursuing a client base;

f) Scheduling appointments and assessing, consulting, negotiating and informing homeowners and potential buyers of value of property; and

g) Assessing and arranging staging of a seller’s house;

Physical Impairment

14I do not find that the applicant has a substantial inability to perform the essential tasks of his employment because of an accident-related physical impairment.

15The applicant testified that he suffers from ongoing, chronic neck, shoulder, and low back pain, which has resulted in a substantial inability to work as a real estate agent. He stated that his chronic pain has resulted in difficulties sleeping, which leaves him fatigued. Further, he is unable to sit and stand for extended periods of time as a result of pain that makes sitting at a computer, making cold calls, and driving to and from properties painful and difficult. While I believe the applicant suffers from ongoing pain, I do not find the medical evidence supports that his accident-related physical impairments resulted in a substantial inability to perform the essential tasks of his employment for the relevant time-period.

16The medical evidence I find relevant to the time-period being assessed are the IEs of Ken Yip and Dr. Dessouki, the report of the applicant’s assessor, Dr. Nathanson, and the family doctor’s clinical notes and records (“CNRs”).

17I do not find either party’s expert reports assessing the applicant’s physical impairments helpful in determining whether the applicant had a substantial inability to carry out the essential tasks of his pre-accident employment for the following reasons.

18I find Dr. Dessouki’s IE report, dated July 21, 2017, to be brief and lacking in detail and analysis. After completing a physical examination, Dr. Dessouki concluded that there was no objective evidence of residual musculoskeletal impairment attributable to injuries sustained in the accident. His examination revealed that the applicant had functional range of motion of his cervical spine, shoulders, and lumbar spine. Dr. Dessouki opined that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. The applicant testified that Dr. Dessouki’s assessment took five minutes. During cross-examination, Dr. Dessouki confirmed that the assessment likely only took 15 minutes because the applicant did not have anything wrong with him. Although concluding that the applicant did not have a substantial inability to perform the essential tasks of his employment, Dr. Dessouki did not analyze the essential tasks of the applicant’s employment. For example, there was no analysis of what the physical demands of the applicant’s job as a real estate agent entailed. For these reasons, I have given Dr. Dessouki’s report little evidentiary weight.

19I also find the functional impairment report, dated March 26, 2019, completed by Dr. Nathanson to be problematic. The bulk of Dr. Nathanson’s report was a series of pictures under the heading “biomechanical testing summary”. Under each category was a picture of the applicant with a Whole Person Impairment (“WPI”) percentage rating² for the various parts of the applicant’s body. Dr. Nathanson diagnosed the applicant with post-traumatic headaches, cervicogenic headaches, as well as several deficits (i.e., pushing and pulling, left and right shoulder deficit, right wrist deficit and limited range of motion (“ROM”)).

20Dr. Nathanson’s report then states that the deficits noted would result in the applicant having a substantial inability to perform his pre-accident level of employment tasks. Overall, I find Dr. Nathanson’s report confusing. What I found lacking from the doctor’s report was any analysis explaining how any of the deficits he found would interfere with the applicant’s physical ability to carry out his employment tasks. For example, Dr. Nathanson’s report did not provide any examples of how the applicant’s impairments would prevent him from carrying out his employment tasks such as the applicant cannot not lift a “For Sale” sign or climb stairs because of chronic back pain. I also did not find Dr. Nathanson’s testimony helpful in explaining his report as he spent most of his time discussing nerve roots and the neurological components of various muscles. Dr. Nathanson did not provide any rationale for why he used WPI ratings for assessing the applicant’s functional limitations and the ratings were not adequately explained in his report or testimony. Dr. Nathanson also acknowledged during cross-examination that he relied entirely on the applicant’s self-reports about his accident-related impairments, as well as his pre- and post-accident employment tasks. For these reasons, I also give Dr. Nathanson’s report and opinion little weight.

21Since I do not find either party’s expert reports helpful in assessing the applicant’s physical impairment, the other sources of information—such as the functional abilities evaluation IE of Ken Yip, physiotherapist, and the family doctor’s CNRs attracted more weight.

22The functional abilities evaluation of Mr. Yip concluded that the applicant demonstrated the physical abilities compatible with a light physical demands level. For example, the applicant could handle lifting 11 to 20 pounds on an occasional basis and could lift 1 to 10 pounds on a frequent basis. Mr. Yip stated the applicant had no problems walking, sitting, or standing. In his view, the applicant’s physical abilities met the strength, coordination, and positional demands of a real estate agent. I accept Mr. Yip’s findings that the essential tasks of a real-estate agent are of a light physical demand. Further, the findings of Mr. Yip were not challenged. Therefore, I accept the opinion contained in his report regarding the applicant’s functional abilities from a physical perspective.

23The applicant’s family doctor’s CNRs and decoded OHIP summary support that the applicant did not have any pre-existing health issues. The post-accident CNRs of the family doctor support that he attended the day after the accident, complaining of pain in his neck, back, right wrist and ankle, and complained of headaches. He was sent for x-rays, which were normal. He attended twice more that month and his doctor referred him for physiotherapy and prescribed extra strength Tylenol. The applicant did not attend his family doctor’s office again until July 25, 2017, when he again complained of neck and back pain and was prescribed Tylenol 3. His next visit was on February 12, 2018, when the doctor diagnosed him with chronic neck and back pain and prescribed a lumbar brace, orthotics, and extra strength Tylenol.

24While the family doctor’s CNRs support that the applicant suffered from ongoing pain to his back and neck, significantly, there is no mention by the family doctor that these complaints interfered with the applicant’s ability to work. Accordingly, I find that the applicant has not met his onus in proving, on a balance of probabilities, that he has a substantial inability to work because of an accident-related physical impairment.

Psychological Impairment

25I find the medical evidence supports that the applicant sustained a psychological impairment as a result of the accident.

26The applicant testified that his physical limitations and pain have resulted in anxiety and depression, which have impacted his ability to work. Post-accident, his psychological impairment has resulted in low self-confidence, a lack of motivation and vehicular anxiety. Further, he is easily agitated and snappy with people, which would make it difficult for him to communicate and solicit new clients. The applicant’s wife corroborated his testimony about the changes in her husband post-accident. He is socially withdrawn and easily irritated. I found the applicant’s wife to be a credible witness.

27The medical evidence I find most relevant to the time-period in dispute is the psychological IEs completed by Dr. Goodfield and Dr. Mor and the CNRs and progress report of Keesha Elliston, psychological associate. For the reasons that follow, I prefer the opinions of Dr. Goodfield and K. Elliston over the IE completed by Dr. Mor.

28Dr. Goodfield authored a psychological IE report dated July 21, 2017 in which the applicant was diagnosed with Adjustment Disorder with Anxiety. The doctor opined that the applicant was substantially disabled from a psychological perspective from performing the essential tasks of his pre-accident occupation as a real-estate agent. In rendering this opinion, the doctor stated that the applicant’s overall level of anxiety, decreased confidence, diminished patience and sleep and concentration difficulties would likely impact his ability to manage the administrative aspects of his job. In addition, the applicant’s driving anxiety, would impact his ability to manage the driving involved in his work. Dr. Goodfield recommended that the applicant receive counselling to address his psychological impairment.

29Between November 29, 2017 and April 13, 2018, the applicant received counselling from Ms. Elliston (supervised by Leanne Wagner, psychologist). The CNRs from the relevant time-period support that the applicant continued to report significant symptoms of anxiety, emotional distress, driving anxiety, anger and irritation, and fatigue. He also reported that he still was not attending the office regularly but testified that counselling had helped motivate him to go into the office. Ms. Elliston’s office submitted an additional treatment plan for psychological treatment, which the respondent denied.

30Dr. Mor conducted a psychological IE and issued a report dated April 18, 2018. The report notes that the applicant presented as a high-strung, anxious individual. Dr. Mor administered psychological tests, which revealed that the applicant had mild depressive symptoms, minimal anxiety, and scored in the average range in depression and somatization. However, the results of the Motor Vehicle Anxiety Questionnaire revealed that the applicant was still anxious and nervous when driving a vehicle. The applicant reported to Dr. Mor that he currently drives 15 days a month, for approximately 2.5 kilometers within the community. Dr. Mor could not diagnose any psychological condition and opined that the applicant did not have a substantial inability to do the essential tasks of his employment.

31I prefer the report of Dr. Goodfield and CNRs and progress report of Ms. Elliston over the report of Dr. Mor, as the latter doctor does not provide any analysis regarding the essential tasks of the applicant’s pre-accident employment. For example, a large part of the applicant’s job as a real estate agent is to drive to and from properties, with or without clients in his vehicle. As of the date of Dr. Mor’s assessment, the applicant reported having ongoing driving anxiety that interfered with his ability to drive consistently and for long distances. Dr. Mor’s report fails to assess how this might interfere with the applicant’s ability to complete the essential tasks of his employment.

32In addition, I find the applicant consistently reported to assessors that, following the accident, he had low self-confidence that resulted in reduced motivation which, in my view, would interfere with selling homes and finding new clients. Further, the applicant and his wife testified that he was snappy and easily agitated because of pain and fatigue. This was also corroborated by the medical records. I agree with the applicant that success in sales requires energy, motivation, and a positive attitude. Therefore, I find that the medical evidence on its own supports that, at the time his IRBs were terminated, the applicant still suffered a substantial inability to carry out the essential tasks of his employment as a real estate agent. Having said that, the respondent raised valid arguments regarding the applicant’s credibility, which I will address now.

Credibility

33As already noted, the applicant did not have any pre-existing health issues prior to the accident. The applicant testified that prior to the accident he was in excellent health and he did not have any physical or psychological impairments that affected his ability to work in his job as a real-estate agent.

34The applicant reported to the majority of the assessors that, pre-accident, he worked 50 to 60 hours per week and made an income of approximately $90,000.00 per year as a real-estate agent. This equates to selling 8 to 12 houses per year. The applicant also testified that following the accident he made a fraction of what he made pre-accident. The medical evidence also supports that the applicant consistently reported to assessors that financial stressors caused by a loss of income post-accident contributed to his psychological impairment. I find the only documentary evidence before the Tribunal relating to the applicant’s employment undermined his credibility.

35Of significance, the respondent submitted a forensic accounting report commissioned by the applicant. The report revealed that the applicant was not forthright with any of the assessors about his pre- or post-accident income. The accounting report supports that in the 52 weeks prior to the accident, the applicant made $8,000.00. In the fiscal year before that, he made $54,000.00. The respondent highlighted this discrepancy in comparison to what the applicant reported to assessors. The accounting report also supports that the applicant made more income from real estate transactions in the year following the accident, which discredits his position that he has a substantial inability to perform the essential tasks of his employment. In addition, all of the applicant’s assessors acknowledged that they did not have accurate information about the applicant’s employment in rendering their opinions regarding to what degree his impairments interfered with his ability to work.

36The applicant consistently reported to assessors and his psychotherapist that the accident caused him financial stress, which contributed to his psychological impairment. The respondent highlighted that the applicant made more money from IRB payments in the year following the accident compared to what he made in the year prior to the accident. As a result, I find the applicant’s self reports to assessors about the accident causing him financial distress to be contradictory.

37The respondent argues that the applicant’s self reports about his pre- and post- accident income undermines his credibility and the value of his assessors’ reports. I agree. During cross-examination, the applicant testified that the accounting report was not accurate, but he could not provide any explanation as to why. The appendix attached to the accounting report highlights that the calculations were based on the applicant’s income tax returns and documentation from his self-employment. I find it makes little sense for the applicant to submit an accounting report to the respondent in support of his claim for IRBs if it contained inaccurate information.

38The applicant did not submit any other documentary evidence to support his pre- or post-accident employment income or to support that his income has declined post-accident. In fact, the accounting report demonstrates that the applicant made more income in the year following the accident. The applicant acknowledged that he has attempted to work post-accident, however, he has primarily relied on sales from family and friends, as they purportedly do not judge him the same way a regular client would. No evidence was submitted to support this assertion. Moreover, I did not find that the applicant was able to adequately explain the lower income he earned in the year prior to the accident.

39The applicant’s wife testified that her husband is not the same person post-accident and that she has been responsible for most of the household tasks, parenting responsibilities and the family’s finances. During cross-examination, the applicant’s wife was asked about the accounting report and she also could not explain the discrepancy. In addition, she also acknowledged that there were other things at play in the years leading up to the accident, which may have impacted the applicant’s ability to earn an income. Sadly, the couple suffered a miscarriage in 2010 and the applicant’s mother passed-away in 2011. Further, the couples’ three-year old son was diagnosed with a life-threatening food allergy which required close monitoring. I do not find the miscarriage or passing of the applicant’s mother relevant as both incidents significantly predate the accident. However, the accounting report leads me to believe that the applicant was not working full-time pre-accident (or the hours he reported to assessors) because of other reasons. The accounting report also supports that there was no income loss in the year following the accident compared to the year prior, which does not help the applicant’s position.

40This matter is complicated by the fact that the applicant has been diagnosed with a psychological impairment by both his and the respondent’s IE assessors. Having said that, all four of the applicant’s experts acknowledged during cross-examination that their reports and opinions about the applicant’s pre-accident employment were based entirely on his self-reports. They did not review any employment files or supporting documentation in completing their assessments. Moreover, the applicant’s assessors also recognized that the applicant’s self-reports to them about his pre-accident employment were not accurate. Consequently, I find their reports and opinions about the applicant’s impairments and his inability to work post-accident were not based on accurate information. I agree with the respondent that an accurate history of the applicant’s pre-accident employment and documentation to support it is necessary to determine to what extent his accident-related impairment resulted in his inability to work. This was not done in this case.

41As a result of these credibility issues, the applicant has failed to persuade me on a balance of probabilities that his accident-related impairments resulted in a substantial inability for him to complete the essential tasks of employment. Therefore, I do not find that he is entitled to payment of an IRB for the pre-104-week period in dispute.

Post-104-week IRBs

42The evidence does not support that the applicant meets the post-104-week test for entitlement to IRBs.

43As already highlighted above, the credibility issues raised by the respondent has undermined the applicant’s pre-104 IRB claim. Further, the only evidence regarding the applicant’s employment was the forensic accounting report. This report supports that he continued to work post-accident as a real estate agent in 2017 and 2018. As of the date of the hearing, he had not yet filed income tax returns for 2019 and 2020. Therefore, he has not proven that he has sustained an income loss for these years or that he has not been working. Further, the applicant also acknowledged during cross-examination that he has not applied for any alternative jobs since the accident.

44The respondent relied on the decision of this Tribunal in 17-004556 v. Traders General Insurance³ in support of its position that, where an insured is able to work post-accident in some capacity, they do not meet the disability test for post-104 IRBs. I agree with the adjudicator’s analysis in that decision. In my view, the applicant’s ability to generate sales from 2017 to 2018 discredits his argument that he has a complete inability to engage in any employment or self-employment for which he is suited by education, training or experience. The applicant did not submit any case law in support of his position. Further, no evidence was submitted to confirm that he has not worked from 2019 to the date of the hearing. The onus is on the applicant to prove ongoing entitlement to the benefits in dispute. He has failed to discharge his onus.

45While the reports of Dr. Davila, Farhana Jessa and Dr. Rivlin support that the applicant suffers from ongoing accident-related impairments, I do not find them helpful in addressing whether the applicant has a complete inability to carry out any employment to which he is reasonably suited by education, training or experience, which is the test for IRB entitlement for the period post-104-weeks.

46Dr. Davila’s report dated February 3, 2020, diagnosed the applicant with Post-Traumatic Stress Disorder, Somatoform Disorder – Chronic Pain and Major Depression - Episode. Although the applicant reported to Dr. Davila that he had not returned to work at his pre-accident level, the doctor renders no opinion regarding the applicant’s inability to work in this report. Instead, Dr. Davila recommends that the applicant receive cognitive behavioural therapy and participate in a driving retraining program. Dr. Davila authored an addendum report a few days later in which the doctor confirms that from, a psychological perspective, the applicant is not able to return to work in any occupation to which he is reasonably suited by education, training or experience. In addition, Dr. Davila states that the applicant requires counselling before he can initiate the process of a meaningful return to work as a real-estate agent or develop alternative vocational activities.

47Unlike the IE of Dr. Goodfield, Dr. Davila provides little rationale or analysis to justify her opinion. For example, there was no discussion about the applicant’s educational background or employment history in rendering this conclusion. Further, there was no discussion about the fact that the applicant had been working in some capacity in the years following the accident. In addition, as already noted, Dr. Davila did not have accurate information about the applicant’s pre-accident work history. For these reasons, I give this report little weight.

48I do not accept Dr. Rivlin’s report and testimony for similar reasons. Dr. Rivlin concluded that the applicant suffers from chronic pain. I find Dr. Rivlin heavily relied on the applicant’s self-reports about his pre- and post-accident employment and functional limitations in rendering his opinion. Dr. Rivlin’s report was also inconsistent, as on the one hand, he notes that the applicant was physically impaired and limited in his function. Despite this fact, the doctor encouraged the applicant to engage in regular activities with the exception of heavy lifting. Otherwise, the applicant was not restricted from any activities. Further, very little analysis was done on whether the applicant could work in any capacity that he was reasonably suited by education, training, and experience. Dr. Rivlin also acknowledged that he had very little knowledge about the applicant’s employment history.

49Finally, the applicant relied on Ms. Jessa’s situational work assessment, in which the applicant completed 13 work modules assessing different spheres of function. Ms. Jessa concluded that the applicant did not complete five within the required time frames, made errors and developed pain and fatigue throughout the assessment. Ms. Jessa concluded that the applicant could not engage in his pre-accident occupation as a real-estate agent or any competitive employment. She also acknowledged during cross-examination that she did not have accurate information about the applicant’s employment history. Further, Ms. Jessa acknowledged in her report that she did not have a vocational assessment to compare alternative employment options for the applicant. Neither party submitted a vocational assessment identifying whether there are alternative employment options or that the applicant cannot work in any capacity. This is the legal test which the applicant was required to satisfy.

50For all of the above reasons, the applicant has not met his onus in proving, on a balance of probabilities, that he has a complete inability to engage in any employment for which he is suited by education, training or experience. Therefore, he is not entitled to IRBs from December 6, 2018 to date and ongoing.

Is the applicant entitled to $2,000.00 for a psychological assessment, recommended by Dr. Davila in a treatment plan dated submitted and denied on June 22, 2019?

51The applicant is entitled to the OCF-18 recommended by Dr. Davila in the amount of $2,000.00 for the psychological assessment denied on June 22, 2019.

52Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for a cost of examination expense that is reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that the cost of examination is reasonable and necessary.

53The OCF-18 dated June 21, 2019 authored by Dr. Davila recommended a psychological assessment in the amount of $2,000.00. The goal of the OCF-18 was to assist in recommending psychological treatment. The applicant incurred the cost of the assessment.

54As noted, the applicant received counselling from Ms. Elliston to address his accident-related psychological complaints. He testified at the hearing that the counselling he received from this clinic was beneficial in improving his symptoms and that he wished to continue seeing this therapist. The evidence supports that after the second treatment plan was denied, the applicant’s psychological status deteriorated. This was confirmed by the findings of Dr. Mor’s second psychological IE dated August 28, 2019.

55The purpose of Dr. Mor’s psychological IE was to determine whether the psychological assessment recommended by Dr. Davila was reasonable and necessary. Dr. Mor concluded that the OCF-18 was not reasonable and necessary because it would be a duplication of services, as the applicant confirmed he did not wish to switch service providers. However, I disagree, as an OCF-18 for psychological treatment submitted by K. Elliston had already been denied.

56I find the respondent’s argument that the psychological assessment was a duplication of services to be unpersuasive as the purpose of Dr. Mor’s IE was to determine whether there was an ongoing psychological impairment that required treatment. In my view, this supports the fact that the psychological assessment recommended by Dr. Davila is reasonable and necessary. Further, Dr. Davila’s psychological assessment recommended that the applicant receive ongoing counselling from someone trained in cognitive behavioural therapy. It did not specify that Dr. Davila would be the service provider who provided cognitive behavioral therapy to the applicant. Further, while I do not find that the applicant’s psychological impairment resulted in an inability to work post-accident, I do find that the evidence supports that he has a psychological impairment that requires further treatment. Therefore, I find a psychological assessment was required to make that recommendation.

57The applicant has proven on a balance of probabilities that the OCF-18 in the amount of $2,000.00 for the psychological assessment recommended by Dr. Davila is reasonable and necessary.

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

58Section 51(1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. The applicant is entitled to payment of interest on the OCF-18 in the amount of $2,000.00 for the psychological assessment as I find it to be reasonable and necessary at the time it was submitted.

ORDER

59For all of the above reasons, I order as follows:

1. The applicant is not entitled to payment of IRBs in the amount of $400.00 per week from May 4, 2018 to date and ongoing or interest on same;
2. The applicant is entitled to the psychological assessment in the amount of $2,000.00 recommended by Dr. Davila in the treatment plan denied on June 22, 2019, plus interest payable pursuant to the Schedule.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2The American Medical Association Guides uses WPI percentage ratings to assess whether an individual sustained a catastrophic impairment.
3. 317-004556 v. Traders General Insurance, 2020 CanLII 61455 (ON LAT).