Applicant Fails to Make case for Benefits - Applicant v Aviva - 17-001178

October 23, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva - 17-001178 v Aviva 2017 CanLII 62170 (ON LAT)

Date of Decision: August 18, 2017
Heard Before: Adjudicator Christopher A. Ferguson

ENTITLEMENT TO BENEFITS: assessment by chronic pain specialist is not the same as one by a psychologist or psychiatrist; applicant gives contradictory evidence to medical assessors;

The Applicant was involved in a car accident on June 13, 2015, and sought benefits pursuant to the SABs. The applicant applied for dispute resolution services to the LAT on March 1, 2017.

Issues

1. Is the applicant entitled to a medical benefit in the amount of $2000.00 for psychological services recommended in a Treatment and Assessment Plan (OCF-18) dated April 19, 2016 and denied by Aviva on April 28, 2016?
2. Is the applicant entitled to costs in this matter?

Result

1. The applicant is not entitled to the medical benefits recommended in the above-noted OCF-18.
2. The applicant’s request for costs is denied.

Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

In her submissions, the applicant relies heavily on an independent psychological assessment report dated May 18, 2016, to show that she has sustained psychological impairments arising from the accident that require treatment, and on the disputed OCF-18 does not discuss its details.

Finally, the applicant also cited a report by a chronic pain specialist dated December 2, 2016, which indicates that her injuries include depression.  Because the doctor is not a psychologist or psychiatrist, the Adjudicator found that his observation is outweighed by the findings of a qualified psychologist.

Aviva relies on the insurer’s examination dated June 7, 2016, which concludes that the disputed OCF-18 was neither reasonable nor necessary.  It reports the applicant did not suffer from any psychological impairment that reaches clinical proportions or that result in a DSM IV diagnosis or that require formal psychological services.

The IE and the two reports by Dr. G depend heavily on forthright self-reporting by the applicant, because conclusions are drawn, in large part, from the applicant’s in various standardized interview and question/answer tests. In the IE, the applicant’s statements in a direct interview contradicted or were inconsistent with information provided to the OCF-18 physician. 

The applicant makes no explanation for the discrepancies in self-reporting in the different examinations.  She offers no evidence or argument that Aviva’s IE report is flawed in approach or methodology or non-credible in any respect. Accordingly, the Adjudicator gave the IE report substantial weight in determining this issue. The Adjudicator found that the unexplained discrepancies in self-reporting by the applicant in the conflicting reports weakens the reliability her reports, and undermines the probative value of the disputed OCF-18. The unexplained and contradictory self-reporting by the applicant in clinical examinations undermine her case that she has met the required onus of proof.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.