Frank v. Aviva General Insurance, 2023 CanLII 7281

Citation: Frank v. Aviva General Insurance, 2023 ONLAT 20-011346/AABS

Licence Appeal Tribunal File Number: 20-011346/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:

Jermaine Frank

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Jessica Cavdar

APPEARANCES:

For the Applicant: Alim Ramji, Counsel

For the Respondent: Yann Grand - Clement, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was injured in an accident on August 6, 2019 and sought various benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule''). The respondent denied the benefits in dispute on the basis of its determination that the treatment plans were not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to the cost of examination in the amount of $2,460.00 for a psychological assessment recommended by Complete Rehab Centre in a treatment plan submitted March 17, 2021?
2. Is the applicant entitled to the cost of examination in the amount of $2,460.00 for an orthopaedic assessment recommended by Complete Rehab Centre in a treatment plan submitted May 17, 2021?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has failed to establish that the costs of examinations in dispute are reasonable and necessary, and therefore not entitled to any of the disputed benefits or to interest. The application is dismissed.

ANALYSIS

Psychological Assessment

4To receive payment for a treatment and assessment plan under s. 15 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 how the overall costs of achieving them are reasonable. Further, assessments and their costs, as set out in s. 25 of the Schedule, are intended to determine whether a condition exists. They are by their nature speculative, but in order to show they are reasonable and necessary, the applicant must point to objective evidence that there is basis to suspect that he has the condition for which he seeks the assessment.

5I find the applicant has not demonstrated that this Treatment and Assessment Plan (“OCF-18”) is reasonable and necessary as a result of the subject accident. While the applicant’s family physician, Dr. Phillip Mah, made note of “psychological effects” at the applicant’s August 18, 2019 visit, which took place approximately two weeks after the subject accident, the applicant failed to provide any evidence that he subsequently sought any psychological or mental health treatment. This is despite receiving a referral from Dr. Mah to a psychologist during this visit.

6The applicant then attended follow-up visits with Dr. Mah on August 30, 2019 and September 29, 2019, but no discussion of psychological issues appear in these clinical notes. Dr. Mah noted the applicant was suffering from stress on January 24, 2021, but this was related to working during the pandemic, as the subject accident is not mentioned. Although the applicant reported to Dr. Mah that he had difficulty sleeping at a December 1, 2019 visit, this was due to his shoulder pain as opposed to psychological impairment.

7The applicant raises the September 30, 2020 s. 44 assessment of psychologist Dr. John W. Lee, which was conducted on August 24, 2020 with regards to an accident the applicant was involved in on February 17, 2019. The issues in dispute before me center around two costs of assessment from March and May, 2021, respectively. The six- and eight- month-long deltas between Dr. Lee’s assessment and the respective treatment plans in dispute leads me to afford less weight to this piece of evidence and its connection to the treatment plans in dispute herein.

8While Dr. Lee’s report mentions that the applicant reported that he had attended more than 10 sessions of in-person psychological treatment sometime between 2019 and 2020 which was funded by his work insurance, as well as subsequent phone sessions, there are no clinical notes and records regarding any such treatment in the evidentiary record. Although Dr. Lee advised in his report that there were “symptoms congruent with Adjustment Disorder” tied to the accident at issue, Dr. Lee did not make a diagnosis in regards to the August 6, 2019 accident and did not recommend any additional psychological treatment.

9The applicant adduced psychological screening forms that he himself completed on January 24, 2020 and July 20, 2020 at Complete Rehab Centre in which he makes reference to various mental health issues. Because these forms were completed by the applicant, I afford them little weight.

10Lastly, the applicant relies on a February 4, 2021 report by physician Dr. Aimal Sediq of Centres for Pain Management in which Dr. Sediq makes reference to anxiety, but does not indicate that it is tied to the subject accident.

11The applicant has not led sufficient evidence to demonstrate why the proposed psychological assessment is reasonable and necessary to treat the applicant’s accident-related injuries. I therefore find that the treatment plan is neither reasonable nor necessary pursuant to the Schedule.

Orthopaedic Assessment

12As above, to receive payment for an assessment, the applicant must demonstrate on a balance of probabilities that the benefit is reasonable and necessary for their treatment as a result of injury from the accident. In order to show that the costs of assessment are reasonable and necessary, the applicant must raise objective evidence that there is basis to suspect that he has the condition for which he seeks the assessment.

13The assessment in question is with regard to the applicant’s shoulder injury. The applicant’s submissions state that an MRI for his left shoulder was requisitioned prior to the August 6, 2019 accident but was not conducted until almost two weeks following the subject accident. The applicant submits that the August 6, 2019 accident may therefore have been the cause of the applicant’s left shoulder tear.

14I disagree with this line of reasoning. The timing of this MRI does not establish causation. There is no evidence before me to prove what caused the applicant’s left shoulder tear.

15The applicant attended an insurer’s assessment on July 27, 2020 with Dr. Sabrina Ming-Wai Tu, GP, who found that the applicant had likely suffered from a left shoulder strain, thoracic strain, lumbar strain, and an acute exacerbation of his pre-existing left shoulder and mid and lower back pain as a direct result of the subject accident. This report – which predates the treatment plan in dispute by almost eight months – does not demonstrate why the treatment plan in dispute is reasonable or necessary as a result of the subject accident.

16Further, the applicant’s shoulder injury has been thoroughly assessed since the August 6, 2019 accident and was monitored by Dr. Yardley, an orthopaedic surgeon at Athlete’s Care. It is unclear why the applicant would seek further orthopaedic assessment from another clinic.

17The applicant failed to seek a report regarding his shoulder from an OHIP-referred orthopaedic surgeon who treated him clinically. Section 47(2) of the Schedule precludes funding for services available under plans such as OHIP.

18The applicant’s submissions failed to identify why the cost of the orthopaedic assessment in question would be reasonable or necessary pursuant to the Schedule.

CONCLUSION

19The applicant has not demonstrated that the treatment and assessment plans in dispute are reasonable and necessary pursuant to the Schedule. It follows that no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.