Applicant makes case for benefit and overdue interest - 18-00838 AR v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT)

May 01, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant makes case for benefit and overdue interest - 18-00838 AR v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT)

Date of Decision: January 18, 2019
Heard Before: Sandeep Johal, Adjudicator

ENTITLEMENT TO BENEFITS – applicant makes the case for entitlement to benefits as recommended in the IE; interest is due on overdue payments

AR was injured in a car accident on March 4, 2016 and sought benefits pursuant to the SABs. Aviva denied certain benefits and AR applied to the LAT for conflict resolution.

Issues:

1. Is AR entitled to a medical benefit in the amount of $3,093.03 for psychological services?
2. Is AR entitled to a medical benefit in the amount of $2,655.00 for physiotherapy services?
3. Is AR entitled to receive payment for the cost of examination in the amount of $2,130.00 for a follow up psychological assessment?
4. Is AR entitled to interest on any overdue payment of benefits?
5. Is AR entitled to receive an award under Ontario Regulation 664 because Aviva unreasonably withheld or delayed the payment of benefits?

Results:

1. A medical benefit in the amount of $3,093.03 for psychological services;
2. A cost of examination for a follow-up psychological assessment in the amount $2,130.00;
3. Interest in accordance with the Schedule for any overdue payments on the above approved treatment plan and cost of examination; and
4. Interest on issue number ii from paragraph 3 above in accordance with the Schedule.
5. AR is not entitled to an award.

ANALYSIS

Is AR entitled to a medical benefit for psychological services in the amount of $3,093.03?

AR submits that the treatment plan is reasonable and necessary because it will assist her to find effective strategies for pain management, coping with her ongoing physical symptoms and managing its effect on her mood and capabilities. The goals of the plan include pain reduction and a return to activities of normal living which will be evaluated by cognitive behavioural strategies and ongoing assessment of changes and recovery.

The Adjudicator determined that the reduction of pain for AR is a reasonable and necessary goal and she is entitled to choose treatment that would help her do that. Furthermore, IE report dated July 15, 2018 notes that AR has reported to her own doctor that she has not been driving on the highway and also reported neck and back pain every morning as well as headaches. The opinion did not change from her previous assessment that AR should continue with psychotherapy, treating anxiety related to driving in winter related conditions and addressing AR’s fear of driving in winter conditions by providing in-car treatment.

Is AR entitled to a cost of examination for a follow-up psychological assessment?

AR has a fear of driving in the winter and that fear should be addressed with in-car treatment according to the IE. The doctor then continues and opines that a psychological assessment of AR is not required as it was already determined during the previous course of treatment by her medical practitioners. However, during the previous course of treatment, an in-car assessment was not recommended and it was not until this evaluator completed her own IE assessment of AR was she able to make that determination.  To then suggest an assessment by AR is not required after Dr. Nemeth has provided one and made recommendations for treatment on behalf of Aviva does not seem like a persuasive opinion.

Is the fee in the amount $2,130.00 charged for the psychological assessment reasonable?

The cost of the psychological assessment in the amount of $2,130 to be reasonable for the following reasons.

The Schedule states the insurer shall not pay more than $2,000 for any one assessment or examination.  The treatment plan in question provides a description of the services to be provided as an “Assessment, mental health and addictions”, One assessment is being provided at a cost of $1,930 plus a documentation support activity fee of $200 for a total of $2,130. The Adjudicator found this to be reasonable.

INTEREST

AR is entitled to interest on the approved treatment plan and the cost of examination in accordance with the Schedule.

About Deutschmann Law

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.