Licence Appeal Tribunal File Number: 21-004212/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:
Kamal Subnarain
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Julia Fogarty
APPEARANCES:
For the Applicant:
Kamal Subnarain, Applicant
Joshua Gautreau, Counsel
For the Respondent:
Maggie Morgan, Counsel
HEARD:
In Writing
OVERVIEW
1Kamal Subnarain, the applicant, was involved in an automobile accident on April 11, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied benefits by the respondent, Aviva Insurance Canada (the “Insurer”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed in a treatment plan (the “OCF-18”) by Mediassess Evaluations submitted August 15, 2019 and denied November 4, 2019?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has demonstrated that a psychological assessment is reasonable and necessary and payable once incurred. Interest applies on any overdue benefits.
ANALYSIS
5To receive payment for a treatment plan under 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. There must be a reasonable basis for a request for an assessment.
6To 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.
Psychological Assessment
7I find that the applicant is entitled to $2,486.00 for a psychological assessment. Neither party raised an issue as to the quantum of the assessment.
8The applicant seeks payment of the treatment plan on the basis of medical and assessment records combined with a pre-screen interview by psychologist, P.H. Waxer, Ph. D., C. Psych, conducted in order to determine the appropriateness for a full psychological assessment.
9The applicant’s expert, Dr. Igor Wilderman, found that, having applied the factors for chronic pain, the applicant meets the criteria under the AMA Guides for a diagnosis of chronic pain. On this basis, the applicant would like to further investigate issues around chronic pain and other psychological symptoms that may be related to his pain in the proposed assessment.
10The respondent disagreed with the need for an assessment and states that there have been similar assessments approved, making the treatment plan a duplication of services. The respondent submits that there is no issue of chronic pain to be investigated in the psychological assessment and cites the six criteria set out under the AMA Guides in support of this position. However, while chronic pain is not an issue before me, on review of the applicant’s materials, I find the following facts very clearly weigh in favour of further investigation into how the applicant’s pain issues may have a psychological component warranting an assessment:
i. The applicant has been on some form of pain medication or muscle relaxant since the accident, a period of approximately 8 years, on a recurring and/or continual basis starting with a prescription provided at a visit to a walk-in clinic three to four days after the accident;
ii. She had many medical appointments relating to pain during the period post-accident and she subsequently developed osteoarthritis;
iii. She has indicated on multiple occasions her frustration, upset and anxiety surrounding her heavy dependence on her spouse and child;
iv. She has issues and fear surrounding caring for her 5 grandchildren in a social setting;
v. She returned to work but on modified duties, due to her limitations, until the company closed down; and
vi. She has exhibited the signs of a variety of increasing psychological sequelae that are not yet clearly defined. The applicant’s medicals and reports suggest an increase in symptomology while the respondents experts suggest malingering. A further assessment would determine whether there is a medical basis tied to the accident or an exacerbation of her accident-related symptoms, to what extent they have been exacerbated, and if any further steps need to be taken medically as a result.
11Given the recommendations by Dr. Waxer for a psychological assessment to investigate the applicant’s psychological symptoms, the results of other assessments and the medical records, I find it necessary to conduct a psychological assessment to determine if the applicant’s ongoing symptomology is tied to psychological impairment stemming from the accident.
Interest
12Pursuant to s. 51 of the Schedule, interest shall accrue on the psychological assessment, if incurred.
13The applicant has not incurred the cost of this assessment.
14Since there is no balance overdue, there is no interest that is currently payable. Once the treatment has been incurred