Contradictory Testimony Weakens Applicant's Case - SS and Aviva - 17-001183 v Aviva

October 20, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SS and Aviva - 17-001183 v Aviva General Insurance, 2017 CanLII 62165 (ON LAT)

Date of Decision: August 22, 2017
Heard Before: Adjudicator Christopher A. Ferguson

ENTITLEMENT TO BENEFITS: applicant fails to submit OCF 18; applicant’s assessment not complete; applicant gives contradictory evidence

SS was involved in a car accident on June 13, 2015, and sought benefits to the SABS. When Aviva denied his benefits SS applied to the LAT.

Issues

1. Is SS entitled to a medical benefit in the amount of $2000.00 for psychological services recommended in a Treatment and Assessment Plan (OCF-18) dated February 1, 2016?
2. Is SS entitled to a medical benefit in the amount of $3417.00 for physiotherapy services recommended in a Treatment and Assessment Plan (OCF-18) dated January 26, 2016?
3. Is SS entitled to costs in this matter?

Result

1. The Adjudicator found that SS is not entitled to the medical benefits recommended in either of the above-noted OCF-18s.
2. SS’s request for costs is denied.

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. SS bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

To prove that his proposed psychological treatment plan is reasonable and necessary, SS relies heavily on an independent psychological assessment report dated May 18, 2017.  SS also relies on the disputed OCF 18 of February 1, 2016.  In this report the findings are based on “in-person screening interview”; no reference is made to any other diagnostic tests, and the notes indicate that the report is based on what SS has disclosed.  The provisional diagnosis includes drive/passenger anxiety and adjustment disorder with depression and anxiety.  Finally, SS cited a report by a chronic pain specialist, dated December 2, 2016, which indicates that his injuries include depression.  Because the assessors is not a psychologist or psychiatrist, the Adjudicator gave his observations less weight than the findings of qualified psychologists.

In denying SS’s claim, Aviva relies on its IE report a psychologist, dated May 17, 2016Astructured clinical interview for DSM IV Axis I Disorders was conducted.  The IE report states that SS did not present with mood symptoms causing clinically significant distress or impairment or that would warrant a DSM IV [diagnosis. The IE concludes that the disputed treatment plan was not reasonable and necessary.

The Adjudicator reviewed the medical evidence presented and concluded that the May 18, 2017 report is unpersuasive because of the noted, unexplained contradictions between it and SS’s self-reporting statements in the subsequent IE. SS did not address the inconsistency of his statements in the different examinations, and offered no evidence or argument in his submissions that the respondent’s IE report is flawed in approach or methodology or non-credible in any respect.

The Adjudicator found the unexplained discrepancies in self-reporting by SS in the conflicting reports weaken the reliability of SS and his own assessment. On that basis the Adjudicator found that unexplained and contradictory self-reporting by SS in clinical examinations undermine his case that he has met the onus.

SS did not include the disputed OCF-18 for physiotherapy in either of its submissions for the hearing, and the document was not filed with its initial application. The Adjudicator was not able to assess whether it is reasonable and necessary; nor could the Adjudicator determine that the onus of proof has been met by SS.

On this basis SS is not entitled to a medical benefit in the amount of $2,000.00 for psychological services, nor to the medical benefit in the amount of $3,417.00 for physiotherapy services.

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.