Licence Appeal Tribunal File Number: 22-005294/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:
Vladislav Averkin
Applicant
and
Scottish & York
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Aimee Draper, Counsel
HEARD: By way of written submissions
OVERVIEW
1Vladislav Averkin (the “applicant”) was involved in an automobile accident on March 11, 2020 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 Scottish & York (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:
- Is the applicant entitled to $2,449.37 for psychological services from Downsview Healthcare proposed in a treatment plan (“OCF-18”) dated January 25, 2022?
- Is the applicant entitled to $2,800.43 for an accountant’s report prepared by an accountant from Great Oak VFA, dated August 4, 2020?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
- The applicant is entitled to the OCF-18 for psychological services, in the amount of $2,449.37, dated January 25, 2022. The applicant is also entitled to interest for this OCF-18 in accordance with s. 51 of the Schedule.
- The applicant is not entitled to the cost of the accounting report in the amount of $2,800.43, as it was not reasonable and necessary.
ANALYSIS
The applicant is entitled to the OCF-18 for psychological services, in the amount of $2,449.37, submitted on January 25, 2022
4I find that the applicant has demonstrated on a balance of probabilities that the OCF-18 for psychological services is reasonable and necessary.
5To receive payment for a treatment and assessment plan under ss. 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.
6The applicant submits that he has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood and specific phobia (driving, passenger and pedestrian related). The applicant further argues that he has underwent psychological treatment previously and that Dr. Jacqueline Brunshaw, psychologist, has recommended eight additional sessions of therapy. Lastly, the applicant submits that the previous psychological treatment has made him aware of his triggers and he has learned various techniques to help ease his anxiety. He relies upon the section 25 psychological report of Ms. Helen Llios, registered psychotherapist, and Dr. Brunshaw, dated October 30, 2020, a s. 25 neuropsychological assessment by Dr. Tobi Lubinsky, psychologist and Dr. David Kurzman, psychologist, dated April 4, 2021, and the clinical notes and records of Dr. Brunshaw’s office.
7The respondent submits that the applicant has failed to demonstrate that the three-part test as outlined above has been met. Its position is that there is no evidence of an accident-related psychological condition, diagnosis, or impairment. Furthermore, it argues that there is no mention of emotional or psychological complaints in the clinical notes and records of Dr. Ekaterina Maltseva, the applicant’s family physician. Finally, it argues that neither the applicant nor the health practitioners signed the submitted OCF-18. To support its position, it relies upon the s. 44 psychological report of Dr. Sarah Talebizadeh, psychologist, dated December 14, 2020.
8To start with, as the respondent has raised a concern with respect to the disputed OCF-18 being unsigned, I turn to this issue first. I disagree with the respondent’s position. The applicant has tendered a copy of the completed OCF-18, as evidence, and upon review of same, I note that the applicant and both health practitioners (Dr. Olesksandr Pivtoran, chiropractor and Dr. Brunshaw) signed it. As such, I find that there is no merit to the respondent’s claim that the applicant and the health practitioners did not sign the subject OCF-18.
9Now turning to whether the proposed OCF-18 is reasonable and necessary, I find that it is.
10First, I am persuaded that the applicant sustained psychological impairments as a result of the accident. On October 30, 2020, the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood and specific phobia (driving, passenger and pedestrian related) by Ms. Llios, and Dr. Brunshaw. This was based on the subjective reporting of the applicant and several psychometric testing, such as: The Beck Depression Inventory, the Beck Anxiety Inventory, and the Symptom Checklist-90-Revised.
11Against the respondent’s submission that the applicant never reported his psychological symptoms to Dr. Maltseva, I find the evidence suggests otherwise. As shown in the records, on April 13, 2020, Dr. Maltseva noted that the applicant woke up at night every two to three hours, and as a result he was prescribed Bromazepam.
12I further acknowledge the respondent’s reliance upon Dr. Talebizadeh’s report, to support its position that the applicant has no psychological impairment. However, in my view, the respondent’s own submissions undermine this position. For example, the respondent in its own submissions, advised that it approved two OCF-18s, one of which was for a psychological assessment, and the other for psychological services. It is unclear to me why these OCF-18s were approved by the respondent, if its position was that the applicant sustained no psychological impairments as indicated by Dr. Talebizadeh in her report.
13Notably, Dr. Talebizadeh concluded that an OCF-18 for a psychological assessment was not reasonable and necessary, yet, as the respondent conceded in its submission, this was approved.
14To summarize, I find that the respondent has undermined its own position that the applicant has no psychological impairment from this accident, when it has approved the two above-referenced OCF-18s. Significantly, the respondent approved a previous OCF-18 for psychological services, which was to treat the same psychological conditions as outlined in the OCF-18 before me.
15Second, the progress notes from Dr. Brunshaw’s office demonstrate that the applicant adopted helpful coping strategies to deal with his anxiety and depression and reduced his phobia and avoidant driving behavior. The records not only demonstrate that the applicant underwent 14 sessions from April 13, 2021 to October 15, 2021, but also that he was committed to treatment and implementing strategies such as connecting with loved ones, doing mini-vacations, and maintaining a work-life balance.
16I am alive to the respondent’s argument that the applicant has already received psychotherapy and was discharged as he met the vast majority of the treatment goals. However, contrary to this position, the applicant was not discharged from treatment as alleged. Rather, on October 15, 2021, it was noted by Ms. Catherine Paul, registered psychotherapist, and Dr. Brunshaw, that the applicant’s therapeutic success had been reflected on and they would be in touch with the applicant once further sessions were approved. In my understanding, the applicant was not discharged, but instead, advised that he would be contacted once further sessions were approved.
17Following the completion of the 14 sessions, Dr. Brunshaw completed a progress report, on November 7, 2021. Dr. Brunshaw noted that the applicant was no longer experiencing phobic and avoidant behavior related to being in and around a vehicle following treatment. Dr. Brunshaw also opined that the applicant made progress in practicing emotion regulation by utilizing various coping strategies. However, Dr. Brunshaw opined that the applicant was still experiencing psychological symptoms and required an additional eight sessions to assist him with his recovery.
18Finally, I prefer the recommendations made by Dr. Brunshaw over the s. 44 report of Dr. Talebizadeh for the following three reasons. First, Dr. Brunshaw is the applicant’s treating psychologist, and as such, has more intimate knowledge of the applicant’s treatment needs over Dr. Talebizadeh. Second, Dr. Brunshaw’s opinion that the applicant requires more treatment, is supported by the progress notes, for instance, on September 24, 2021, it was noted that the applicant was struggling to have a work-life balance. In my opinion, this entry supports Dr. Brunshaw’s opinion for further treatment, as the applicant continues to have difficulty maintaining a work-life balance. Lastly, Dr. Talebizadeh’s opinion that the applicant has no psychological impairment was inconsistent with her own observations in her report.
19For instance, at page 7, Dr. Talebizadeh noted that the applicant has not returned to his prior level of functioning at work, at home, or his personal life-post accident. More importantly, Dr. Talebizadeh wrote that the applicant experienced a disturbed sleep pattern and changes in vegetative functioning, such as energy and appetite. Despite making these significant psychological observations of the applicant based on his self-reporting, Dr. Talebizadeh concluded that based on the psychometric testing, i.e., the Pain Patient Profile and Personality Assessment Inventory, the applicant did not meet the criteria for a psychological impairment.
20In my interpretation, the observations made by Dr. Talebizadeh and the self-reporting of the applicant cannot be disregarded without a justification as to why. Here, both the Pain Patient Profile and Personality Assessment Inventory revealed a valid profile, and Dr. Talebizadeh made several observations of the applicant’s psychological impairments. Despite this, Dr. Talebizadeh did not provide an opinion of why this was being disregarded over the psychometric testing.
21As the respondent has not raised specific issues with the proposed costs associated with the OCF-18, I have no reason to think the proposed costs are unreasonable.
22In a similar vein, I am not persuaded by the respondent’s argument that the OCF-18 was not consumed as the applicant did not require additional therapy. An insured may dispute the denial of a treatment plan and seek a ruling from the Tribunal that the proposed treatment is reasonable and necessary before the benefit is incurred. There is no expectation that an applicant must incur significant costs to validate a need for treatment. The whole reason for a treatment plan is to petition the insurer for approval before incurring the cost.
23In conclusion, I find that the applicant has met his burden to prove that the proposed OCF-18 is reasonable and necessary to treat his psychological impairments.
The applicant is not entitled to $2,800.43 for an accountant’s report, dated August 4, 2020
24I find that the applicant is not entitled to $2,800.43 for the cost of the accountant’s report, as he has not produced evidence that he is applying for IRB, nor has he demonstrated that the report is reasonable and necessary.
25According to s. 7(4) of the Schedule:
The insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment if all of the following conditions are satisfied:
The insured person is applying for an income replacement benefit under this Part that is based on the employment or self-employment considered in the report.
The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.
The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit.
26This is to be read in concert with Section 7(5) of the Schedule, which allows up to $2,500.00 in total for the report expenses. The applicant bears the onus of proving these conditions on a balance of probabilities.
27The parties appear to concede that the second condition has been met, as in, the report was prepared by a member of a designated body, being Chang Hwan Kim, a licenced accountant. The issue is whether the other two conditions are met. The first being whether there is evidence that the applicant is applying for IRB, and the second, whether the expense is reasonable and necessary.
28In this regard, the applicant submits that he applied for IRB, based on his employment or self-employment, and that the report was reasonable and necessary to determine his entitlement to IRB.
29Meanwhile, the respondent submits that the applicant has not submitted a claim for IRB. Instead, the respondent argues that the applicant has been pursuing an NEB claim, which was part of the application before the Tribunal, and was later withdrawn at the case conference. Additionally, the respondent submits that the expense is not reasonable and necessary as the vast majority of the work was done in July 2020, when the applicant had returned to work. Also, the respondent argues that there was nothing complex or complicated about the applicant’s IRB calculation, and no specific expertise was required to interpret the documents provided to Great Oaks.
30First, despite the applicant’s submission that he has applied for IRB, he did not direct me to evidence to support this submission. It is well-settled that submissions are not evidence. Particularly, in the Application for Accident Benefits, the applicant checked off the “no” box in response to whether his injuries prevented him from working. In the subject application to the Tribunal, I note that the applicant was claiming NEB, and not IRB, which was subsequently withdrawn at the case conference. Thus, I am not satisfied on a balance of probabilities that the applicant has applied for or has an intention to apply for IRBs.
31Second, the applicant has fallen well short of meeting his burden to demonstrate the report was reasonable and necessary. While he provided a vague submission that it was reasonable and necessary to determine his entitlement to IRB, he did not provide specific submissions to explain how so. For example, the applicant provided no submissions on his employment, or why he required the services of an accountant to calculate his IRB entitlement. He also did not provide submissions of the time period he was claiming IRB from. The onus is on the applicant to prove the report is reasonable and necessary, and not on the respondent to disprove.
32Third, the applicant did not provide any evidence, like the accounting report, to support his claim that it was reasonable and necessary. Even, when the respondent raised numerous concerns with the report in its submission, the applicant did not file reply submissions to address these concerns. As such, the applicant has not discharged his evidentiary onus to demonstrate the report was a reasonable and necessary expense.
The applicant is entitled to interest for the OCF-18 in the amount of $2,449.37, for psychological services, submitted on January 25, 2022
33Pursuant to section 51 of the Schedule, the applicant is entitled to interest for this OCF-18 only.
ORDER
34For the reasons outlined above, I find that:
- The applicant is entitled to the OCF-18 for psychological services, in the amount of $2,449.37, dated January 25, 2022. The applicant is also entitled to interest for this OCF-18 in accordance with s. 51 of the Schedule.
- The applicant is not entitled to the cost of the accounting report in the amount of $2,800.43, as it was not reasonable and necessary.
Released: May 31, 2024
Tanjoyt Deol
Adjudicator