Citation: Sternberg v. Aviva Insurance Canada, 2023 ONLAT 21-012723/AABS

Licence Appeal Tribunal File Number: 21-012723/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:

James Sternberg

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Brian J Kirkland, Paralegal

For the Respondent:

James Kolumbus, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1James Sternberg, (the “applicant”), was involved in an automobile accident on June 24, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $1,866.95 for psychological services, proposed by Dr. Gozlan in a treatment plan (“OCF-18”) dated February 5, 2020?

2. Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant has demonstrated that the OCF-18 for psychological services, dated February 5, 2020, in the amount of $1,866.95, is reasonable and necessary. As such, the applicant is entitled to interest.

4The respondent is not liable to pay an award.

ANALYSIS

Reasonable and Necessary

5To 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. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.

The applicant is entitled to the OCF-18 for psychological services in the amount of $1,866.95

6I find that the applicant has demonstrated on a balance of probabilities that the OCF-18 for psychological services is reasonable and necessary.

7The OCF-18 in dispute is for 16 sessions of therapy, two assessments, and documentation support activity.

8The applicant submits that he was diagnosed with an Adjustment Disorder with Anxiety, Moderate; and Somatic Symptom Disorder (Chronic Pain) by section 25 assessor, Dr. Oren Gozlan, psychologist, in a report, dated January 4, 2019. He further submits in reply that the disputed plan is the continuation of two previous OCF-18s that provided success in terms of managing and mitigating his psychological injury. Moreover, the applicant submits in reply that the goals of the proposed OCF-18 will be met to a reasonable degree which is evident from Dr. Gozlan’s Treatment Plan Completion Report, dated February 26, 2020.

9On the contrary, the respondent submits that the applicant has not met his onus to establish that the disputed OCF-18 is reasonable and necessary. The respondent further argues that the applicant’s initial submissions did not address how the goals of the psychological services were reasonable, how the goals would be met to a reasonable degree, and the costs associated with this. Moreover, the respondent submits that the applicant does not suffer from a psychological impairment that would warrant a diagnosis as per the DSM-V, as a result of the accident, and relies on three separate s. 44 reports to support its position.

10I find that the applicant has led sufficient evidence that the proposed OCF-18 for psychological services is reasonable and necessary.

11Firstly, one of the applicant’s treating psychologists, Dr. Gozlan, recommended the proposed treatment. Dr. Gozlan’s office has been providing psychological services to the applicant since July 24, 2019, and as such, he has more intimate knowledge about the applicant’s treatment needs than the various section 44 assessors do.

12Secondly, the clinical notes and records from Dr. Gozlan’s office further demonstrate that the applicant has ongoing anxiety, but he has benefitted from previous psychological treatment sessions. In particular, on July 24, 2019, August 14, 2019, and November 9, 2019, it was noted that the applicant was engaged throughout the sessions. Moreover, on October 2, 2019, October 23, 2019, and October 30, 2019, it was noted that the applicant appears to be progressing well and that he is implementing strategies to deal with his anxiety.

13Thirdly, Dr. Gozlan completed a Treatment Plan Completion Report which shows that the applicant’s psychological symptoms continue to persist but that he has found improvement with previous psychological sessions. In his February 26, 2020, report, Dr. Gozlan noted that the applicant already attended 16 psychological sessions from July 24, 2019, to February 19, 2020, and recommended that the applicant continue to participate in another 16 psychotherapy sessions, as the applicant’s psychological symptoms continued to persist, and he found the treatment beneficial. In particular, Dr. Gozlan, noted that the applicant in the previous treatment sessions demonstrated significant improvement and was more comfortable using therapy as a container of his anxiety.

14In addition, Dr. Gozlan recommended further treatment to assist the applicant with increasing his hopefulness and optimism about his recovery and his future.

15Moreover, I am not persuaded by the various s.44 assessment reports completed by three separate psychologists, Dr. Syed, Dr. Mandel, and Dr. Lotfalizadeh.

16First, I am not persuaded by Dr. Syed’s report dated August 15, 2017, as it was completed 2.5 years before this OCF-18 was submitted, and as such it is outdated. Moreover, Dr. Syed noted that the overall results of evaluation indicated that the applicant suffers from symptoms of anxiety with features of depressed mood along with concerns about pain.

17Additionally, I am not persuaded by Dr. Mandel’s psychological assessment report dated November 10, 2020, for the following reasons. Firstly, the applicant clearly advised Dr. Mandel that he has undergone psychological treatment and was still undergoing treatment online on a bi-weekly basis. Despite this, Dr. Mandel did not conduct psychological testing such as the BAI and BDI-II. Dr. Mandel reviewed the section 25 psychological assessment report of Dr. Gozlan, and it is unclear why he did not conduct this testing, despite Dr. Gozlan doing so. As such, I place more weight on Dr. Gozlan’s report dated January 4, 2019, as he conducted BAI and BDI-II testing which revealed a moderate level of anxiety and a mild range of depression.

18In addition, I am not persuaded by Dr. Lotfalizadeh’s psychology assessment report, dated January 19, 2023, as it was conducted over three years after the proposed OCF-18 was submitted. Moreover, once again, the applicant advised that he was attending for psychological treatment on a regular basis. While I acknowledge at that time, the BDI-II revealed scores in the asymptomatic range and the BAI revealed scores in the minimal anxiety range, this report was conducted in January 2023, and the proposed OCF-18 was submitted in February of 2020.

19While I further acknowledge that the respondent submits that there is no mention of psychological symptoms to his family physician, Dr. Lai, I nonetheless find Dr. Gozlan’s recommendation to be sufficient to find that the proposed OCF-18 is reasonable and necessary. The applicant has undergone a significant number of psychological treatment sessions at Dr. Gozlan’s office and Dr. Gozlan, who has also treated him, has recommended further treatment.

20The proposed costs of the OCF-18 are also reasonable and within statutory limits.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As such, I find that the applicant is entitled to interest for the disputed OCF-18.

The Applicant is not entitled to an Award

22I find that the applicant has failed to meet his evidentiary onus to establish that he is entitled to an award or interest.

23Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

24The applicant submits that he is entitled to an award due to the respondent’s reliance on its s.44 reports. Further, the applicant submits that the respondent has repeatedly and unreasonably asked for proof that he incurred the disputed OCF-18.

25The respondent submits that its reliance on the section 44 report of Dr. Mandel does not constitute an unreasonable denial. In addition, the respondent submits that it was reasonable to ask for further information from the applicant to determine whether the disputed OCF-18 was incurred.

26It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.

27I find that the respondent’s reliance on Dr. Mandel and Dr. Lotfalizadeh’s reports does not amount to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I find the applicant is not entitled to an award. I also find that it was reasonable for the respondent to ask for further information with respect to whether the disputed OCF-18 was incurred or not. On November 19, 2020, the respondent had agreed to pay for incurred treatment up to the date of November 19, 2020, and as such the respondent was requesting information from the applicant to determine whether it was incurred or not. I do not find this behaviour by the respondent or its representative amounts to the high threshold that is required for an award to be warranted.

ORDER

28I find that the applicant is entitled to the OCF-18 for psychological services, dated February 5, 2020, in the amount of $1,866.95, and interest. The respondent is also not liable to pay an award.