Citation: I.B. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-008684/AABS
Released: May 29, 2020
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:
[I.B]
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION AND ORDER
VICE-CHAIR: D. Gregory Flude
APPEARANCES:
For the Applicant: Swetlana Vinokur, Counsel
For the Respondent: Louise Kanary, Counsel
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, [I.B], was involved in a single-vehicle motorcycle accident on July 23, 2017. It is his position that he requires treatment for serious impairments suffered in the accident. He has applied to his insurance company, Aviva Insurance Company of Canada (“Aviva”), for benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 O. Reg 34/10 (the ''Schedule''). Aviva has denied the benefits.
2Aviva takes the position that [I.B] did not sustain any injuries in the accident. It disputes his version of how the accident occurred. It relies on [I.B]’s reports to first responders and ER personnel at and immediately following the accident to demonstrate the lack of injury. It points to [I.B]’s failure to seek medical aid in a manner consistent with his complaints if they arose from the accident. It also points out that [I.B]’s return to work as an industrial mechanic after four days is inconsistent with the benefits he seeks. Finally, it points to [I.B]’s long prior medical history. It submits, based on the above, that [I.B] sustained no significant impairment as a result of the accident and the benefits he seeks are not reasonable and necessary.
3The pictures of [I.B] and the accident put forward in the parties’ submissions are diverse. [I.B] submits that he lost control of his motorcycle at high speed on a Hwy 400 off-ramp, skidded across the roadway, and hit the median. Aviva asserts that [I.B] was operating at low speed, drove his motorcycle into a field and did not fall off it. Given the differing reports, the contemporaneous reports made to first responders and emergency room healthcare workers, in my view, provide a true picture of the events surrounding the accident. Having reviewed those reports, I conclude that [I.B] did not sustain any significant impairments as a result of the accident.
ISSUES
4The issues in dispute are set out in the case conference order as follows:
i. Is [I.B] entitled to an attendant care benefit in the amount of $926.63 for the period October 1, 2017 to December 31, 2017, and denied on December 5, 2017?
ii. Is [I.B] entitled to medical benefits for services recommended by Galatea Medical for the following:
a. $3,384.00 for physiotherapy treatment submitted in a treatment plan dated March 29, 2018, and denied on April 12, 2018?
b. $2,942.13 for psychological treatment submitted in a treatment plan dated March 29, 2018, and denied on April 17, 2018?
iii. Is [I.B] entitled to cost of examination expenses for services recommended by Galatea Medical for the following:
a. $1,922.89 for an attendant care assessment, submitted in a treatment plan dated September 20, 2017, and denied on October 5, 2017?
b. $1,998.78 for a psychological assessment, submitted in a treatment plan dated November 6, 2017, and denied on November 9, 2017?
iv. Is [I.B] entitled to interest on any overdue payment of benefits?
MATTERS RESOLVED BEFORE THE HEARING
5In its submissions, Aviva states that it has approved the psychological assessment set out in [4]iii.b. The expense has been incurred and Aviva has paid for it. I need not address it further. Aviva has approved the psychological treatment set out in [4]ii.b. above but disputes the hourly rate charged by the treatment provider. I find that the hourly rate proposed by the treatment provider is reasonable.
RESULT
6I find that [I.B] is not entitled to the remaining benefits or cost of examination not addressed in paragraph [5] above. [I.B] is entitled to interest on incurred expenses for psychotherapy in accordance with the Schedule.
ANALYSIS
The Law
7The Schedule codifies the duties and obligations of insurers and insureds under Ontario’s no-fault insurance scheme. The obligation to pay for medical benefits is set out in s. 14 and further expanded in s. 15, as follows:
Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
Medical and rehabilitation benefits under sections 15 to 17.
If the impairment is not a minor injury, attendant care benefits under section 19.
Medical benefits
- (1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for…medical services.
8Read together, Aviva’s obligation under ss. 14 and 15 is to pay for all reasonable and necessary medical services to treat impairments arising out the accident and for necessary attendant care.
9A different section of the Schedule addresses Aviva’s obligation to pay for assessments. Section 25(1)3 obliges Aviva to pay for the following:
Reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been:
a. approved by the insurer,
b. deemed by this Regulation to be payable by the insurer, or
c. determined to be payable by the insurer on the resolution of a dispute described in subsection 280(1) of the Act.
10Since the obligation to pay for assessments under s. 25 is tied to the preparation of treatment and assessment plans, I am of the view that assessments must not only be reasonably priced but must also be reasonably necessary.
The Evolving Accident Story
11[I.B]’s description of the events of July 23, 2017 has changed somewhat from the explanation given at the scene to the explanation given to subsequent healthcare professionals who prepared treatment recommendations. Having reviewed [I.B]’s description of the events, I prefer the earliest report.
12The accident occurred shortly after 7:00 p.m. on July 23, 2017. EMS was notified at 7:15 p.m. and dispatched an ambulance that was on-scene at 7:30 p.m. York Regional Police also attended the scene. The EMS personnel recorded what they observed at the scene and [I.B]’s description of the accident. The narrative from the report is worth reviewing in its entirety:
pt was a single motorcyclist who crashed into a grassy field. pt stated to ems that he wanted to die, pt was asked if he crashed into the field on purpose. but the pt refused to answer the question.
ems arrived on scene to find the pt ambulatory in a grassy field without a helmet on. pt's motorcycle had some damage to it. pt was alert and oriented x3 with no signs of trauma. pt stated he drank heavily last night till early this morning after getting into an argument with his wife. pt states he drank approx I.5 L of hard liquor between last night and 0600hrs this morning. later this afternoon, the pt stated he thinks had approx 6 beers.
pt denied any pain. ems found the pt to be tachycardic @ 154 bpm even when he was at rest. pt denied chest pain. pt denies taking drugs. pt had a GCS-15
pt stated to ems that he wasn't going that fast when he crashed. he stated that he wasn't thinking clearly and drove straight off the ramp into the field. pt denied being thrown off the motorcycle. he stated he was scared and ran after. OPP stated they found the pt's helmet at a nearby school without any scratches on it.
pt agreed to be transported to hospital to have someone to talk to. pt's heart rate dropped to 125 bpm upon arrival to hospital
one [sic] at the hospital, the pt stated he wanted to get off the stretcher and began removing the straps
13The ambulance arrived at the hospital at 8:05 p.m. [I.B] met with a Registered Social Worker at 10:15 p.m. and underwent a psychological screening. In addition to noting a pre-existing history of depression and substance abuse issues, especially with alcohol, the screening report records that, after driving off the road, [I.B] fled the scene and hid his jacket and helmet. York Regional Police officers found [I.B], who initially denied the motorcycle was his. He then admitted it was his. The officers found the helmet behind a nearby school. It was without scratches.
14[I.B] did not report any physical injuries to either the EMS personnel or to the hospital staff. He was taken to hospital solely because he expressed a desire to kill himself. In fact, the police officer recorded that, despite this stated desire and the fact that it would have been easy to drive into traffic, [I.B] did not actually want to die.
15To sum up the contemporaneous reports, they indicate that [I.B] was involved in a low speed departure from the paved roadway into a field, that he was not thrown from the motorcycle and that he sustained no physical injuries. He expressed suicidal ideation, but the police officer, unqualified though he may be, was doubtful of a real intent to die given the availability of other, more certain options.
16On August 11, 2017, just under three weeks after the accident, [I.B] signed an Application for Accident Benefits (OCF-1). His description of the events of the evening of July 23, 2017 is strikingly different from his earlier reports and the observations recorded at the scene. [I.B] states:
As I was exiting Hwy 400 N/B and trying to make a right turn, I lost control of my bike which swerved, turned over caused me to sustain multiple injuries.
Injuries, multiple bruises and abrasions all over my body, neck, cramps in both legs, deterioration of pre-existing depression, insomnia due to pain and anxiety, headaches, severe [unreadable].
17On September 19, 2017, approximately two months after the accident, [I.B] was assessed by a registered nurse, Miriam Kurtach, for attendant care needs. In her report she details the version of the accident as related to her by [I.B]:
[I.B] [sic] reported that on July 23, 2017 he was riding his motorcycle northbound on Hwy 400. Client explained that he was on a ramp getting of [sic] the highway when he lost control of his motorcycle, drove into a ditch and fell. [I.B] stated that he was in shock and did not feel any pain initially. He got p [sic ] and started walking randomly, leaving his bike behind. When he realized that he had an accident, he turned around and returned to the scene. Emergency services were already at the scene and client was taken to [the hospital] in an ambulance. He was assessed and discharged home 8 hours later. On the next day [I.B] started to experience pain all over his body.
18By the next day, September 20, 2017, the story had changed again. [I.B] no longer asserted he drove into a ditch. The multiple bruises and abrasions all over his body are now described as lacerations and contusions. On that day, [I.B] was assessed on behalf of Aviva by Dr. Frank Loritz. The story had been further refined. Dr. Loritz reports that [I.B] advised him the he lost control of the motorcycle while traveling at 85 kph and ended up on the median. He had sustained “numerous lacerations and contusions over his entire torso.” Subsequently, in reports in October and November 2017, Dr. Loritz reports a version of the crash in which [I.B] crashed onto a grassy field and the motorcycle fell on his right leg.
19In November 2017, at an in-home attended care assessment conducted by Marlene Levy, OT, on behalf of Aviva, the ditch had not reappeared, but the version of the accident was as follows:
[I.B] reported that he was riding his motorcycle on Highway #400, and he was wearing a helmet. He stated that he was on the ramp and exiting the highway when he lost control, drove onto the grass and fell off the motorcycle. He reported that he is not sure whether or not he lost consciousness. The first thing he recalls is running and then he recalls returning to the scene of the accident. Ambulance and police attended the scene. He was transported by ambulance to [the Hospital].
The claimant reported "Injury to the entire body from the head to toes"
20On December 12, 2017 [I.B] informed psychologist, Dr. Godwin Lau, that:
[I.B] was involved in a car/motorcycle accident on July 23, 2017. He was wearing his helmet with a leather jacket, riding his motorbike on a weekend evening around 6:00. The weather was unremarkable. He said that he was riding on northbound Highway 400 and was getting off the highway. At that time his motorbike slipped and then it tumbled and he fell onto a nearby grass area. He said that he lost consciousness for a period of time, although, he could not say for how long. Once he became aware of things he got up and ran away from the accident and then stopped. He felt confused. He did not know what he was doing. He denied any bleeding or pain at the moment. Police and ambulance came to the scene. He was taken by ambulance to [the Hospital].
21The only constant in the above versions of the events is that [I.B] was exiting Hwy. 400 northbound. Thereafter, the versions have him leaving the roadway at relatively low speed and entering a grassy field without falling off his bike; driving into a ditch and falling off his bike; losing control at high speed and hitting the median; and slipping and tumbling into a grassy area. He lost consciousness; did not lose consciousness; lost consciousness momentarily; and he does not know how long he lost consciousness. He ran away because he had been drinking heavily and didn’t want to be caught by the police; he hid his jacket and helmet only to have them found by the police; and he was confused and wandered away but came back of his own accord. He sustained no physical injuries; he sustained multiple bruises and abrasions; he sustained lacerations and contusions; and there was no blood, he sustained a concussion. From this recitation I conclude that [I.B] is a very poor historian. I therefore look to the most reliable reports, namely the reports of those who were present at the scene minutes after the events and of those persons [I.B] spoke to shortly after the events.
22I conclude from the EMS and accounts of police reports that [I.B] drove off the roadway at low speed into a field. He did not fall off his motorcycle and he did not sustain any physical injuries. Whether he drove off the roadway deliberately because of his depression and suicidal ideation is unclear and not an issue with which I must concern myself.
REASONABLENESS AND NECESSITY OF THE TREATMENT PLANS
Medical History
23As with the descriptions of the accidents, [I.B]’s descriptions of his pre-accident health show great variability. The Decoded OHIP Summary shows a long medical relationship with Dr. Irina Yelenbaugen. Starting in 2014, [I.B] saw Dr. Yelenbaugen for a range of complaints. He complained of chest pains and syncope (fainting). He fractured his arm in 2015 and required surgery. In early 2017, he underwent a series of heart tests including echocardiograms and stress-tested ECGs. He was also investigated for digestive tract issues later in 2017.
24In June 2017, a month before the accident, [I.B] saw Dr. Yelenbaugen complaining of depressive mood. He advised her that he had been treated by psychologists for this condition in the past but was not taking any medication at that time. This entry would seem to confirm what [I.B] told [the Hospital] staff on the day of the accident, that he had had depression for 5 – 7 years following his divorce from his first wife. It also contradicts a later entry by Dr. Yelenbaugen on February 14, 2019 that [I.B] had had “depression since 2017.” Long-term depression is also noted in the report of Dr. Zubkov dated September 12, 2017.
25Dr. Yelenbaugen’s notes do not disclose complaints of musculoskeletal problems pre- or post-accident. All of the notes indicate normal musculoskeletal condition. In contrast to these reports, [I.B] gave detailed and extensive complaints of musculoskeletal pain to various assessors. These complaints were inconsistent.
26[I.B] was seen by Miriam Kurtach, RN, on September 19, 2017. Ms. Kurtach notes that [I.B] told her: “that prior to his accident, he was in excellent physical health and self-sufficient with respect to his activities of daily living.” She notes that since the accident, he complains of neck pain, lower back pain and decreased ROM, bilateral shoulder pain, headaches, bilateral shin pain resulted in decreased knee/ankle range of motion, decreased balance/dizziness, depression, and difficulty sleeping.”
27Ms. Kurtach conducted range of motion tests on [I.B]. She found he had full range of motion without pain in all areas of his spine except his lower back/lumber spine areas. She records limited range of motion and pain in the lower back.
28The day after Ms. Kurtach’s visit to [I.B]’s home, on September 20, 2017, [I.B] was examined by Dr. Frank Loritz, a general practitioner, on behalf of Aviva. Dr. Loritz notes that, physically, [I.B]’s only pre-accident complaints were lower back and neck pain following a hard-day’s work. Dr. Loritz also notes a pre-accident history of depression absent in Ms. Kurtach’s report. The list of current difficulties set out by Dr. Loritz notes neck and shoulder pain, low back pain, bilateral calf pain, and headaches.
29Much of [I.B]’s previous medical history was not disclosed to Dr. Lau when he performed a psychological assessment on December 12, 2017. He records the medical history given by [I.B] as follows:
[I.B] reported no history of head injuries, psychiatric problems, abuses, drinking problems, or suicidal attempts. He said that he has been smoking marijuana for recreational purpose for over 25 years. He said that he smokes a lot of weed. He also smokes three to four cigarettes a day. He said that he had surgery in his right elbow in 2015, after he fell down from rollerblading. He sustained a fracture. He went to [the Hospital 2] and had day surgery. He said that the doctors put seven screws and a plate inside his right elbow. He said that he still has pain from time to time especially when the weather changes. otherwise, he denies any other major health issues before the accident. He said that overall before the subject accident, he was doing fine physically except occasional pain in the right shoulder. Emotionally he was stable, although, he was upset about his wife's deportation.
30As with reports of how the accident happened, [I.B] lacks consistency in reporting his medical history. He appears to tailor his history to what he thinks the listener wants to hear, especially with respect to the impact of the accident on his functioning.
31One major feature of his medical complaints in his application for attendant care benefits is his claim that he suffers dizziness. He reported this dizziness to Ms. Kurtach when she performed her attendant care assessment. While not reporting dizziness to Dr. Loritz during the initial examination on September 20, 2017, later in the year when Dr. Loritz examined [I.B] for entitlement to attendant care, [I.B] reported dizziness. The Disability Certificate (OCF-3) completed by chiropractor, Dr. Dianna Bakalovski, on August 10, 2017 notes concussion as an injury sustained in the accident. I have previously found, on a balance of probabilities, that [I.B] did not sustain physical injuries as a result of the accident. Given that his helmet was found by York Regional Police without a scratch or other damage and that [I.B] did not fall off his motorcycle, I conclude that [I.B] did not sustain a concussion at the accident and the source of any dizziness is not accident-related.
Physical Treatment
32The actual events of July 23, 2017 are significant in assessing the proposed treatment. If an assessor relied on incorrect information in coming to a conclusion about the impact of the accident on [I.B], that conclusion is suspect. For example, in his assessment report dated Dr. Loritz is asked: “Did the claimant sustain an impairment as a result of the motor vehicle accident?” He answers: “The claimant developed myofascial pain symptoms as a result of multiple soft tissue sprain/strain and contusive injuries as a direct result of the motor vehicle accident.” This conclusion is now seriously in doubt.
33In his examination, on September 20, 2017, Dr. Loritz found pain at the end range of cervical movement, mild limitations in lumbar flexibility and calf muscle pain likely caused by haematomas. He attributes these findings to the accident, because that is what he was told. In fact, [I.B] reported that he suffered similar back and neck pain prior to the accident following a hard-day’s work in his job as an industrial mechanic. The mechanism of the accident establishes, on a balance of probabilities, that [I.B]’s physical complaints are not accident-related.
34As a result of this finding, it follows that the $3,384.00 for physiotherapy treatment submitted in a treatment plan dated March 29, 2018 and denied on April 12, 2018 is not reasonable and necessary. It does remediate impairments sustained by [I.B] in the accident.
Attendant Care Assessment – Treatment Plan submitted September 20, 2017
35Aviva resists payment of the attendant care assessment on two grounds. It relies on s. 38(2) of the Schedule, which provides that it is not required to pay for an assessment incurred prior to the submission of a treatment plan. The treatment plan is dated September 18, 2017. It was not submitted to Aviva until September 20 but the assessment itself was performed by Miriam Kurtach, R.N., on September 19, 2017. It is Aviva’s submission that s. 38(2) relieves it of any obligation to pay for the assessment.
36Section 38 applies to “all applications for approval of assessments or examinations.” It goes on to provide in s. 38(2) as follows:
An insurer is not liable to pay an expense in respect of…an assessment or examination that was incurred before the insured person submits a treatment and assessment plan
37The operative date in s. 38(2) is the date of the submission of the treatment and assessment plan to Aviva, not the date on which it was prepared. There are very good reasons for the policy set out in s. 38(2). The scheme of the Schedule contemplates that the insured submit proposed treatment for an insurer’s approval. The insurer then has 10 days to review the proposed treatment and respond. That response may be to approve the treatment, deny the treatment or require the assured to attend an examination under s. 44. If the insurer fails to respond within 10 days, it becomes liable to pay for all treatment incurred from the 11th day until the insurer responds in accordance with the Schedule.
38In this case, by performing the assessment before the submission of a treatment plan, [I.B] has foreclosed Aviva’s right to conduct its own assessment and reply within the permitted time frames. There is no emergency reason for conducting the assessment before submitting the treatment plan, since it is an assessment, not emergency treatment. It also occurred almost two months post-accident when emergency considerations, if any, had long since expired.
39By virtue of s. 38(2), Aviva is not liable to pay for the attendant care assessment.
40The second ground advanced by Aviva is that the assessment was not reasonable and necessary. In light of my finding on the first ground, I need not address this ground.
Attendant Care Benefit
41I find [I.B]’s claim for payment of attendant care expenses implausible. Section 19 of the Schedule provides that Aviva is liable to pay all reasonable and necessary expenses that are incurred for an aide or attendant for providing personal care services to [I.B] that he could not provide for himself. Given that [I.B] returned to a physically demanding job several days after the accident and reported self-sufficiency in his activities of daily living to a number of assessors, there is no basis to conclude that he needed help in personal care.
42As stated above, [I.B] was assessed by Miriam Kurtach, RN, on September 19, 2017 in his home. In addition to an inconsistent description of the accident itself, the recorded pre-accident medical history is at odds with his actual pre-accident medical history. He described a series of physical complaints without explaining that many of his complaints pre-dated the accident. For example, he fails to mention he had pre-existing back and neck issues.
43Ms. Kurtach records that [I.B] had a full, painless range of motion in his spine and upper extremities with the exception of “pulling pain” in his shoulders and pain and limited range of motion in his lumbar spine. She notes that [I.B] gets bouts of dizziness when reaching above his head. She recommends:
Considering significant muscular and connective tissue pathology, patient would benefit from a Course of Rehab emphasizing Back/Neck ROM, stretches, Back/Neck stability, UE and LE ROM and functional rehabilitation. As patient is able to tolerate greater ranges of movement in his neck, back and upper extremities, he may increase his participation in Activities of Daily Living. The current level of tolerance is low, possibly to the injury to the musculoskeletal and nervous system. As patient is progressing, he should be able to tolerate a greater range and longer period of activity without aggravating the neural tissue located in the area of injury. The slow and steady pace of progress should minimize aggravation of pain and complications, and decrease the potential for chronic pain.
44Ms. Kurtach recommends 875 minutes per month in attendant care. She reports that [I.B] experiences dizziness when carrying out a number of activities. In her assessment, conducted on November 7, 2017 on behalf of Aviva, Marlene Levy, OT, also reports that [I.B] complains of dizziness in the execution of several tasks. She notes that he can perform a wide-range of self-care task. She notes two tasks where he stated he had required assistance since the accident: making his bed and hair care. Ms. Levy concludes that [I.B] can perform all of his self-care tasks with pacing.
45From my finding that [I.B] sustained no physical injuries in the accident, it flows that that he is not entitled to an attendant care benefit. I can see no support in the medical evidence for the accident causing dizziness. There are references to [I.B] having sustained a concussion by chiropractors in August and September 2017, but no other medical evidence to support their conclusions. There is certainly no evidence from the accident scene, or his immediate post-accident hospital visit, to suggest a head injury and concussion as a result of the accident. There are no notes from his family physician that he sought treatment for dizziness at any time.
46Both Ms. Kurtach and Ms. Levy report dizziness as a limiting factor. Ms. Levy concludes that this problem and other limitations can be addressed in the two areas where she finds he had assistance since the accident by pacing. Ms. Kurtach does not address pacing. In light of this, I prefer the conclusions of Ms. Levy as a truer reflection of [I.B]’s abilities. Thus, even if I am mistaken in addressing the question of the causation of the dizziness, I would still find that [I.B] does not require attendant care since he could perform all of his self-care needs with appropriate pacing.
Psychological Treatment Plan
47Aviva concedes that [I.B] requires psychotherapy treatment. It disputes the quantum of the treatment plan. The treatment plan, dated March 29, 2018, calls for 16 psychotherapy sessions to be performed by Ainur Alipkaliyeva (psychotherapist), and supervised by a psychologist, Dr. Svetlana Gabidulina. Ms. Alipkaliyeva is a fully qualified psychotherapist. Aviva takes the position that there is no need for her to be supervised by Ms. Gabidulina. Further, Aviva submits that a guideline, the Professional Services Guideline (the “Guideline”), sets the rate to be paid to Ms. Alipkaliyeva at $58.19 per hour, not the rate of $149.61 set out in the treatment plan.
48[I.B] submits that the rate for Ms. Alipkaliyeva is not set out in the Guideline. In his submission, the general market rate for psychotherapy treatment is greatly in excess of $58.19 per hour and is, in fact, greater than $149.61 per hour set out for psychologists in the Guideline. In his submission, the higher rate is applicable as a rate to ensure that he is provided the needed services.
49The starting point for Aviva’s position is s. 15(2) of the Schedule. It states:
Despite subsection (1), the insurer is not liable to pay medical benefits,
(b) for expenses related to goods and services … rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines
50The definition of Guidelines in s. 3 includes a guideline setting out fees for professional services, i.e. the Guideline.
51In its review of the Guideline, Aviva points out that psychotherapists are not listed in the Appendix setting rates for service providers. It does not draw from that fact that a psychotherapist cannot provide services under the Schedule. It appears content that [I.B] receive psychotherapy from Ms. Alipkaliyeva. It takes the position that Ms. Alipkaliyeva is best characterized as an “Unregulated Provider” akin to a psychometrist or a vocational counsellor. I disagree.
52While the Guideline contemplates a wide range of services, it recognizes that it does not capture all service providers. It states:
Services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the Guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved.
53Thus, according to the Guideline, it is not open to Aviva to unilaterally assign a value to Ms. Alipkaliyeva’s services based on its view the she is an unregulated provider. Indeed, as both parties point out in their submissions, Ms. Alipkaliyeva is highly regulated and is subject to regulation by the College of Registered Psychotherapists of Ontario under the Psychotherapy Act, 2007 and the Regulated Health Professions Act, 1991. Since the parties are not able to agree what value to assign the Ms. Alipkaliyeva’s services, I must assign a rate.
54Other than argue that Ms. Alipkaliyeva falls within the definition of unregulated providers, Aviva has failed to put forward any evidence of rates charged by psychotherapists in Ontario. The evidence advanced by [I.B] is scant. It makes sweeping general statements such as “it is a well-known fact that it is impossible to find a Psychotherapist in Ontario, who would provide psychotherapy sessions for $58.19 /hour.” In the absence of more, I decline to take adjudicative notice of such a “well-known” fact. Of more substance is the evidence of the fee guide of the Ontario Psychological Association setting the rate for similar services at $225.00 per hour. [I.B] also points out that Ms. Alipkaliyeva refused to provide the service for $58.19 but would provide it at a rate of $146.91. Without getting into a comparison of the inherent value of services provided by psychologists and psychotherapists, I note that the Guideline recommends payment significantly less than the rate recommended by the Ontario Psychological Association. I also note the similarity of the psychotherapy service provided by a psychologist and a psychotherapist. In my view, a rate of $146.91 is appropriate for Ms. Alipkaliyeva’s services.
55I agree with Aviva that Ms. Alipkaliyeva is qualified to provide these services without supervision, and I decline to award any part of the treatment plan that contemplates supervision by a psychologist.
ORDER
56Having considered the evidence and read the submissions of the parties, for the reasons set out herein, I order that [I.B] claim for the following benefits is benefits is dismissed:
i. an attendant care benefit in the amount of $926.63 for the period October 1, 2017 to December 31, 2017, and denied on December 5, 2017?
ii. medical benefits for services recommended by Galatea Medical for $3,384.00 for physiotherapy treatment submitted in a treatment plan dated March 29, 2018, and denied on April 12, 2018?
iii. a cost of examination expense for services recommended by Galatea Medical for $1,922.89 for an attendant care assessment, submitted in a treatment plan dated September 20, 2017, and denied on October 5, 2017?
57I order that [I.B] is entitled to psychological treatment at the rate of $146.91 per hour for 16, 90-minute psychotherapy sessions for the services of Ainur Alipkaliyeva but not for supervisory services by a psychologist submitted in a treatment plan dated March 29, 2018, and denied on April 17, 2018?
58[I.B] is entitled to interest according to the Schedule on payments made for the three psychotherapy sessions he attended.
Released: May 29, 2020
__________________________
D. Gregory Flude
Vice-Chair