Licence Appeal Tribunal File Number: 20-013673/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:
Carrie Snow
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Robert Lamot, Counsel
For the Respondent:
Melanie Sousa, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Carrie Snow (“the applicant”), was involved in an automobile accident on November 28, 20217, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva General Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided are:
Is the applicant entitled to a medical benefit in the amount of $3,341.00 for psychological services recommended by Brampton Civic Care Centre in a treatment plan/OCF-18 dated April 1, 2019?
Is the applicant entitled to a medical benefit in the amount of $499.00 ($998.00 les $549.00 approved) for orthotics recommended by Ontario Independent Assessment Centre in a treatment plan/OCF-18 dated December 4, 2018?
Is the applicant entitled to a medical benefit in the amount of $1,850.00 for a functional cognitive assessment recommended by Ontario Independent Assessment Centre in a treatment plan/OCF-18 dated July 6, 2018?
Is the applicant entitled to a medical benefit in the amount of $1,966.13 for a driving reintegration assessment recommended by Ontario Independent Assessment Centre in a treatment plan/OCF-18 dated July 20, 2018?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment and assessment plans in dispute.
4No interest or award is payable.
5The application is dismissed.
ANALYSIS
6To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The treatment plan for psychological services is not reasonable and necessary
7The applicant has not met her burden to prove that the treatment plan for psychological services is reasonable and necessary.
8The applicant underwent a s. 25 psychological assessment (report dated June 6, 2018) with Marco Chiodo, psychologist. He diagnosed an adjustment disorder with mixed anxiety and depressed mood and features of a somatic symptom disorder. Testing completed as part of the assessment indicated depression in the mild range and anxiety in the moderate range, and psychological treatment was recommended.
9Following that assessment, twelve psychological treatment sessions were recommended and approved, and incurred.
10The insurer’s examination (“IE”) report of Dr. Syed, psychologist, dated December 27, 2018, indicates that the applicant did not appear to be significantly impaired psychologically. Considering both the applicant’s subjective reports, and the results of psychometric testing, Dr. Syed opined that the applicant was not suffering from a psychological impairment that would warrant a diagnosis. I find this consistent with Mr. Chiodo’s psychological reassessment, dated April 7, 2019, in which his diagnostic testing revealed minimal depressive and anxiety symptoms. Dr. Syed provided a paper review, dated May 2, 2019, and opined that the subject treatment plan was not reasonable or necessary.
11A third IE report was completed by Dr. Syed, dated March 5, 2020. During that assessment, the applicant denied feeling sad or depressed, being more easily angered, frustrated, irritable, or experiencing problems of feeling overly anxious. Testing revealed minimal impairment with respect to anxiety and mild impairment with respect to depression, and again did not warrant a psychological diagnosis, nor any further investigation or treatment.
12I find Dr. Syed’s reports persuasive. Dr. Syed’s opinion is consistent with Mr. Chiodo’s reassessment, and supported by the fact that the family doctor’s records do not contain reference to any accident-related psychological complaints.
13I find that the requested psychological services are not reasonable and necessary because any psychological impairment appears to have largely resolved with the treatment previously received.
The balance of the treatment plan for orthotics is not reasonable and necessary
14The treatment plan dated December 4, 2018 proposed custom orthotics and custom orthotic shoes. The respondent approved the portion of the plan for the custom orthotics but denied the amount for the custom orthotic shoes.
15The applicant’s submissions discuss her injuries and some of the treatment received, but largely focus on establishing that she had an impairment as a result of the accident. As outlined in J.C. and Certas Direct Insurance Company, 2016 CanLII 96161 the applicant’s burden to prove that treatment is reasonable and necessary goes beyond showing that the applicant had an impairment. The applicant must provide sufficient detail to explain why the specific treatment requested is reasonable and necessary in relation to the impairments.
16The applicant does not make any submissions as to why the balance of this treatment plan is reasonable and necessary as a result of her accident-related injuries. The applicant does not explain why she required custom orthopedic shoes. The IE assessor, Dr. Millard (physiatrist), concluded in her report dated February 4, 2019 that the custom orthotic shoes were not reasonable or necessary, that any type of supportive properly fitting footwear would be suitable for the orthotics. I see no reason to interfere with that conclusion.
17The applicant has not met her burden to prove that the balance of this treatment plan is reasonable and necessary.
The functional and cognitive assessment is not reasonable and necessary
18Similarly, the applicant makes no submissions as to why this proposed assessment is reasonable and necessary as a result of the accident. There is no discussion regarding the purpose of this assessment, or why it was required as a result of her accident-related injuries.
19Further, Dr. Syed found that the applicant did not meet the diagnostic criteria for a psychological impairment. She did not report any problems with money management, such as issues with paying bills or paying them on time, and denied having any difficulty keeping track of her appointments. According to the applicant’s functional abilities evaluation report of Dr. Curcio, she did not report any cognitive complaints. During a chronic pain assessment with Dr. Wilderman (report dated January 28, 2019), the applicant indicated “no” to whether she had trouble with memory and concentration.
20I am not persuaded that the evidence supports the need for such an assessment. Accordingly, I find that it is not reasonable and necessary.
The driving reintegration assessment is not reasonable and necessary
21The applicant has not met her burden to prove that the proposed assessment is reasonable and necessary.
22The applicant reported experiencing driving anxiety during the June 2018 assessment with Mr. Chiodo, rated at 50/100. Mr. Chiodo suggested twelve sessions of psychological treatment, and noted that she may benefit from a driving desensitization program if her vehicular travel anxiety did not dissipate. The proposed cognitive behavioural therapy sessions were approved.
23Dr. Syed found in her December 2018 report that the applicant was not suffering from any diagnosable psychological impairment and had reached maximum medical improvement. She concluded that the treatment plan was not reasonable and necessary, as in addition to failing to meet the criteria for a diagnosable psychological ailment, the applicant reported that she was driving almost every day. She reported that she had completed ten treatment sessions since the accident and was learning how to manage her anxiety while driving. She reported fear of being in another accident, but continued to drive almost every day, and continued to commute from her home to her work in another city post-accident.
24Dr. Syed’s conclusions are supported by Mr. Chiodo’s psychological reassessment report, which indicates that the applicant reported that her driving anxiety was gradually improving. Dr. Wilderman’s chronic pain assessment records also indicate that the applicant responded “no” when asked if she developed a fear of driving.
25Accordingly, I find that this assessment is not reasonable or necessary.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that the applicant is not entitled to the disputed benefits, no interest is owing.
Award
27The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. No benefits were unreasonably withheld or delayed, no award is payable.
ORDER
28The applicant is not entitled to the treatment and assessment plans in dispute.
29No interest or award is payable.
30The application is dismissed.
Released: November 24, 2023
Kate Grieves
Adjudicator