Laura Levy v. Aviva Insurance Company, 2020 CanLII 51293

Citation: Laura Levy vs. Aviva Insurance Company, 2020 ONLAT 19-006014/AABS

Date: July 29, 2020

Tribunal File Number: 19-006014/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:

Laura Levy

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Neisha Moses, Paralegal

For the Respondent:

Amanda Faulkner, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant was injured in an automobile accident (the “accident”) on July 10, 2016 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent, Aviva Insurance Company (“Aviva”), refused to pay for certain medical benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2A case conference was held on October 15, 2019. The parties were unable to resolve their dispute and have proceeded to a written hearing.

BACKGROUND

3The applicant was the front seat passenger of a vehicle which was parked with the engine running. Her young children were in the back seat. The vehicle popped out of park, lurched forward, and then rolled backward and hit a tree. The applicant suffered psychological impairments as a result of the accident.

ISSUES

4The disputed claims in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $2,543.41 for psychological services recommended by Imperial Medical Assessments Inc.in a treatment plan (OCF-18) dated March 6, 2018?

ii. Is the applicant entitled to a medical benefit in the amount of $720.00 (original OCF-18 amount $2,625.12, partially approved in the amount of $1,905.12) for driving lessons recommended by Imperial Medial Assessments Inc. in a treatment plan dated May 4, 2017?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me, and on a balance of probabilities, I find that:

i. The applicant is not entitled to a medical benefit in the amount of $2,543.41 for psychological services recommended by Imperial Medical Assessments Inc.in a treatment plan (OCF-18) dated March 6, 2018.

ii. The applicant is not entitled to a medical benefit in the amount of $720.00 (original OCF-18 amount of $2,625.12, partially approved in the amount of $1,905.12) for driving lessons recommended by Imperial Medial Assessments Inc. in a treatment plan dated May 4, 2017.

iii. As no benefits are payable, no interest is found to be owed.

LAW

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.¹

ANALYSIS

OCF-18 in the amount of $2,543.41 for psychological services

7I do not find on a balance of probabilities that the applicant has proven this OCF-18 is reasonable and necessary for the following reasons:

(i) The psychological treatment proposed within the OCF-18 is not being provided by the psychologist listed in the OCF-18. Dr. Eugene Hewchuk, psychologist at Imperial Medical Assessments (“Imperial”), prepared the OCF-18, and no other provider was listed on the OCF-18. The hourly rate for psychological treatment was based on an hourly rate for a psychologist. The Examination Under Oath transcript (“EUO transcript”)² following the EUO on June 20, 2018 noted the applicant stated she only ever received psychological treatment following the accident from Ms. Anna Paliouris (“Ms. Paliouris”), psychotherapist, and any further psychological treatment she would want to be with Ms. Paliouris. The Statutory Declaration of Dr. Hewchuk, dated September 15, 2017 and a psychological progress report authored by Ms. Paliouris both noted that Ms. Paliouris was working under the supervision of Dr. Hewchuk.

(ii) The supervisory role Dr. Hewchuk provided to Ms. Paliouris is unclear as he was never present in the same room during the applicant’s counselling sessions. Nor has the applicant produced information to explain why Ms. Paliouris is being supervised by Dr. Hewchuk. Therefore, I do not accept Ms. Paliouris should be paid the same hourly rate as a psychologist within the Professional Services Guideline (“the Guideline”)³ for a psychologist. The Guideline does not list psychotherapists and a result there is no hourly rate noted within the Guideline for them.

8I also find this OCF-18 is not payable pursuant to s. 33(6) of the Schedule. Section 33(6) of the Schedule notes that an insurer is not liable to pay for a benefit in respect to any period in which an insured person has failed to comply with requests made by an insurer under subsections (1) or (2). I find that the applicant has not complied with Aviva’s request under s.33(1) of the Schedule and as a result, Aviva is not liable to pay for this benefit pursuant to s. 33(6). Aviva issued an Explanation of Benefits (“EOB”) letter dated July 13, 2018⁴ which noted if the applicant wanted further psychological treatment, the applicant would need to submit an OCF-18 identifying the correct health practitioner. The applicant confirmed at the EUO on June 20, 2018 that she only received psychological treatment following the accident from Ms. Paliouris and she would want any further treatment to be with Ms. Paliouris.

9The applicant’s position is the OCF-18 is reasonable and necessary to assist the applicant in addressing her psychological impairments sustained as a result of the accident. The applicant relies on a psychological progress report, dated March 4, 2018⁵ by Ms. Paliouris, and also signed by Dr. Hewchuk. Her report noted the applicant was experiencing ongoing distress and psychological impairment and 10 additional sessions of psychological treatment were recommended. The applicant submits the findings of this report mirror the findings of a previous psychological report and psychological assessment.⁶

10Aviva refutes the applicant’s position and submits this treatment plan is not reasonable and necessary because Imperial proposed treatment with Dr. Hewchuk, at an hourly rate for a psychologist. The applicant previously attended psychological sessions with Ms. Paliouris and Aviva argues if she needed more psychological treatment, she would want it to be with Ms. Paliouris.⁷ Aviva previously approved two OCF-18’s for psychological treatment on March 7 and July 24, 2017 which were submitted by Dr. Hewchuk from Imperial.

11Two Statutory Declarations⁸, both dated September 15, 2017, were produced for the hearing. One was signed by Dr. Hewchuk and the other by Ms. Paliouris. Both Statutory Declarations noted Ms. Paliouris provided the psychological treatment to the applicant. Dr. Hewchuk’s Statutory Declaration noted he supervised the psychological treatment provided by Ms. Paliouris.

12The OCF-18 in dispute was denied in an EOB dated March 21, 2018. The basis for the denial is because Aviva requested more information from Imperial,⁹ confirmation regarding who would be providing the psychological treatment. If the provider listed within part 4 of the OCF-18 would not be providing the treatment, Aviva requested further particulars relating to supervision questions pertaining to the treatment. Further, Aviva requested the clinical notes and records (“CNRs”) from Imperial and offered to request them on the applicant’s behalf through a Permission to Disclose Health Information (“OCF-5”) form. Aviva submits it did not receive this information and the applicant did not refute this. Aviva sent correspondence to the Applicant dated May 29, 2018. This correspondence noted a section 33 request was made to the applicant on May 10, 2018 in accordance with the Schedule for the production of the CNRs from Imperial and the CNRs from the family doctor from July 10, 2015 to present. Aviva requested this information to further consider approval of the disputed OCF-18. Aviva submitted this information was not produced and arranged for the applicant to attend an EUO which took place on June 20, 2018.

13The EUO transcript of June 20, 2018 noted that the applicant stated she received psychological counselling only from Ms. Paliouris following the accident, and that it was only ever the two of them in the room during these sessions. Further, the EUO transcript also noted the applicant stated she only saw Dr. Hewchuk for assessments.

14As the applicant attended this EUO, pursuant to s.33(2) of the Schedule, I find this satisfies s.33(6) of the Schedule. However, I find Aviva made a further request pursuant to s.33(1) when it issued an EOB dated July 13, 2018. The EOB noted it was determined at the EUO that her treating health practitioner was Ms. Paliouris and if the applicant wanted Aviva to approve future psychological treatment, an OCF-18 would need to be submitted indicating the correct health practitioner providing the treatment and to determine the correct rate for psychotherapy. As another OCF-18 identifying the correct health practitioner was not produced to Aviva, I find the applicant has not complied with s.33(1) of the Schedule and therefore s.33(6) applies and Aviva is not liable to pay for this OCF-18.

15The applicant submits Ms. Paliouris provided psychological services “parallel” to those provided by a psychologist and therefore should be paid a psychologist fee as classified under the Guideline. The applicant relies on a prior Tribunal decision in which I was the Adjudicator, 18-007991 v. Intact Insurance Company.¹⁰ I find that case distinguishable from this case. In 18-007991, I found the psychotherapist was entitled to be paid at the same hourly rate as a psychologist, as noted in the Guideline. This finding was based upon the treating psychotherapist’s credentials and specialized training within the area of cognitive behaviour therapy. The treatment plan was prepared by the psychotherapist who was also listed as the treatment provider. Further, the psychotherapist in 18-007991 was not working under the supervision of a psychologist when providing cognitive behaviour therapy sessions. I find the case before me distinguishable because while Ms. Paliouris is trained and experienced as a licenced psychotherapist with the College of Registered Psychotherapists of Ontario, the psychological sessions she provided to the applicant were under the supervision of Dr. Hewchuk. I accept the evidence contained in the EUO transcript that Dr. Hewchuk was not in the room when the applicant attended psychological sessions with Ms. Paliouris and that Dr. Hewchuk has never provided psychological treatment to the applicant. It is unclear what role Dr. Hewchuk played in the supervision of the psychological treatment of the applicant.

16The applicant submits “the health professional that is actually providing the benefit is as competent to provide the treatment as the medical professional listed in the treatment plan, and has an identical rate under the Guideline.” I disagree. The Guideline does not list an hourly rate specifically for psychotherapists but notes an hourly rate for counsellors of $58.19 per hour. For psychologists, or psychological associates, the hourly rate noted within the Guideline is $149.61. Therefore, I find the Guideline does not list the same hourly rate for a psychotherapist and a psychologist.

17In support of her position that the OCF-18 is reasonable and necessary, the applicant also relies on the Tribunal decision, 17-005950 v Aviva Insurance Canada¹¹ in which a treating clinic sent a copy of an OCF-18 to the address of the incorrect insurer. As a result, the Adjudicator found that since the OCF-18 was deemed not to have been received by the insurer, the insurer was not liable to pay for the benefits claimed. I do not find this case to be on point and is not persuasive that the OCF-18 before me is reasonable and necessary.

18The respondent relies on the Tribunal decision, 17-006851 and RBC Insurance Company¹² in which the adjudicator found that a social worker (working in the capacity of a psychometrist) administered, prepared, and completed a psychological assessment, including psychometric tests, while the psychologist supervised. The OCF-18 was prepared by a psychologist and noted the hourly rate for a psychologist. The psychometrist was not noted within the treatment plan and the Adjudicator found the psychometrist should be paid an hourly rate in accordance with the Guideline for a psychometrist as noted within the Guideline at $58.19. I recognize Ms. Paliouris is a psychotherapist, and not a psychometrist, and provided psychological treatment, and not an assessment. However, Ms. Paliouris was not listed on the OCF-18 in dispute and is working under the supervision of Dr. Hewchuk. While I accept the applicant’s submission that her psychological impairments stemming from the accident support the need for further psychological treatment, the OCF-18 only lists Dr. Hewchuk as the treatment provider and notes an hourly rate for a psychologist. The EUO transcript establishes that if the applicant were to seek further psychological treatment, it would be with Ms. Paliouris. I am not persuaded that the psychological treatment provided by Ms. Paliouris should be at the same rate as a psychologist as noted within the Guideline. Therefore, I do not find this treatment plan to be reasonable and necessary as I find on a balance of probabilities that the treatment would not be provided by the provider listed on the disputed OCF-18. I have not been persuaded by the applicant’s argument that Ms. Paliouris is entitled to a rate as noted within the Guideline for a psychologist.

Unapproved balance of OCF-18 in the amount of $720.00 for driving lessons

19I do not find the applicant has demonstrated on a balance of probabilities that the balance of the OCF-18 for driving lessons in the amount of $720.00 is reasonable and necessary. The OCF-18 was partially approved by Aviva. The unapproved amount represented the difference in the hourly fee for driving instruction. The OCF-18 proposed an hourly rate of $120.00 per hour for the driving sessions. Aviva approved the driving sessions at an hourly rate of $60.00 per hour which left the unapproved balance of the treatment plan in the amount of $720.00. The applicant has not persuaded me how the experience and rehabilitative driving sessions provided by Oleg Kaganovich, driving instructor substantially differs from driving sessions provided by driving instructors at other driving schools which charge up to $60.00 per hour. Further, I am not persuaded by the OCF-18 that driving sessions up to $120.00 are reasonable and necessary for the reasons outlined below.

20The applicant submits Mr. Kaganovich has been a driving instructor since 2004. The applicant relies on this to substantiate the hourly rate of $120.00 for the driving sessions proposed within the treatment plan. The applicant has not established how the driving sessions being proposed by this instructor provide a different service from what is being provided by other driving instructors at a rate of $30.00 - $60.00 per hour. The applicant has not produced evidence to support that Mr. Kaganovich has specific training and experience in providing “rehabilitative” driving sessions. Further, the OCF-18 proposes “rehabilitative” driving sessions in a number of different road settings. However, the OCF-18 does not distinguish how these “rehabilitative” driving sessions differ from what would be offered by a driving instructor through a standard driving school. As a result, I do not find the applicant has met her onus that the balance of this treatment plan is reasonable and necessary.

21The OCF-18 proposes 12 driving reintegration sessions, combining anxiety desensitization and driving instruction through driving sessions, clinical progress review, and re-assessment. The OCF-18 notes driving sessions on local streets, major streets, multitasking, and on the highway. The goal is to restore road confidence and reduce anxiety while traveling in an automobile.

22While I accept that the applicant requires driving sessions to address her in vehicle anxiety which she experiences, specifically as a passenger. I am not persuaded that the driving sessions offered by Mr. Kaganovich at $120.00 per hour are reasonable and necessary. The applicant has provided submissions on why a standard rehabilitative driving school cannot offer the same service as Mr. Kaganovich, but the applicant has not produced evidence to support this. I do not accept that because Mr. Kaganovich is an experienced instructor since 2004 that this substantiates the fee of $120.00 per hour which is double what a standard driving school charges for hourly driving sessions. The applicant relies on the psychological progress report of Ms. Paliouris¹³ which noted the applicant is quite nervous as a passenger and will keep alerting the driver to depress the brakes. It is the applicant’s submission that she requires an experienced driving instructor, Mr. Kaganovich to assist her with overcoming her fears and with coping with certain driving situations which induce anxiety. The applicant submits that Mr. Kaganovich’ s extensive experience can provide the specific rehabilitative driving lessons which would teach the applicant the techniques to feel safe and in control while driving. The applicant submits that she cannot get the assistance she requires through a standard driving school and submits the disputed treatment plan has been incurred. The applicant has not produced evidence to support this OCF-18 was fully incurred. The applicant argues that rehabilitation driving fees provided through another service provider charge $125.00/hour.¹⁴

23While the Guideline does not list an hourly rate for driving instructors, I find Aviva’s approval of an hourly rate of $60.00 per hour for driving sessions to be reasonable. I find the applicant and the OCF-18 have not established how the driving sessions proposed by Mr. Kaganovich differ from services provided by driving instructors at a standard driving school. Therefore, I do not accept the hourly rate proposed of $120.00 per hour for the driving sessions is reasonable and necessary. The Guideline notes a maximum hourly rate of $58.19 for unregulated providers for non-catastrophic impairments. Aviva acknowledges that as a result, the Guideline allows for the amounts payable to be determined by the parties, but Aviva submits the rate of $120.00 per hour sought by the service provider is unreasonable. The EOB from Aviva dated May 19, 2017 provided the names of two driving schools/instructors which charged $30.00-$60.00 for an hourly driving lesson. Aviva submits the two driving schools noted were approved on the Ministry of Transportation’s website. I find the applicant is not entitled to the balance of this treatment plan.

CONCLUSION

24For the reasons I outlined above, I order the following:

(i) The applicant is not entitled to a medical benefit in the amount of $2,543.41 for psychological services recommended by Imperial Medical Assessments Inc. in a treatment plan (OCF-18) dated March 6, 2018.

(ii) The applicant is not entitled to a medical benefit in the amount of $720.00 (original OCF-18 amount of $2,625.12, partially approved in the amount of $1,905.12) for driving lessons recommended by Imperial Medial Assessments Inc. in a treatment plan dated May 4, 2017.

(iii) As no benefits are payable, no interest is found to be owed.

(iv) The applicant’s claim is dismissed.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635.
2. 2Tab K of the respondent’s written submissions – Transcript from Examination Under Oath of applicant on June 20, 2018, at 92-94 of written submissions (pages 11-13 of transcript).
3. 3Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014.
4. 4Tab L of the respondent’s submissions – Explanation of Benefits, dated July 13, 2018.
5. 5Tab 5 of applicant’s submissions - Psychological Progress Report #2 of Anna Paliouris, dated March 4, 2018, at 3.
6. 6Tabs 6 and 7 of applicant’s submissions – Psychological Progress report of Anna Paliouris, dated June 28, 2017 and Psychological Report of Dr. C. Walker, psychologist, dated February 16, 2017.
7. 7Supra, note 2, at 94 (page 113 of transcript.)
8. 8Tab E of respondent’s submissions – Statutory Declarations of Dr. Hewchuk and Anna Paliouris, dated September 15, 2017.
9. 9Tabs G & H of respondent’s submissions – Explanation of Benefits, dated March 21, 2018 and Request for Further for Information Letter to Imperial, dated March 21, 2018 at 70-74.
10. 1018-007991 v. Intact Insurance Company, 2019 CanLII 76995 (ONLAT), at para 6.
11. 1117-005950 v Aviva Insurance Canada, 2018 CanLII 110926 (ONLAT), at 35
12. 1217-006851 and RBC Insurance Company, 2018 CanLII 83514 (ONLAT), at 5-6.
13. 13Supra, note 5, at 2
14. 14Tab 4 of applicant’s reply submissions – Rehabilitation Driving rates at $125.00/hour from Drive ON!