Citation: Allen v. Aviva Insurance Company of Canada, 2022 ONLAT 20-008780/AABS

Licence Appeal Tribunal File Number: 20-008780/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:

Noel Allen

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Justin Mariani, Counsel

For the Respondent:

Catherine Zingg, Counsel

HEARD:

By way of written hearing

BACKGROUND

1The applicant was involved in an automobile accident on June 29, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant raised the issue of a special award in his written submissions, which I have added to the issues in dispute.

ISSUES

3The following issues are to be decided by the Tribunal

i. Is the applicant entitled to $3,700.00 ($5,100.00 less $1,400.00 approved?

by the respondent) for psychological treatment, recommended by Novo medical Services in a plan dated July 16, 2019?

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

iii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?

LAW

4Section 3(1) of the Schedule provides definitions for various terms and phrases used in the Schedule. Definition (b) of the term “authorized transportation expense” states that unless an insured person has been deemed catastrophically impaired as a result of the accident, expenses related to transportation for services are only incurred after the first 50 kilometers of a trip. Sections 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule states that an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses”.

5Section 3(7)(e) of the Schedule states that for the purpose of the Schedule, an expense related to goods or services is not incurred unless: the insured person has received the goods/services to which the expense relates; the insured person has paid, has promised to pay or is legally obligated to pay the expense; and the person who provided the goods/services did so in the course of his/her/their normal employment/occupation/profession, or sustained an economic loss as a result of providing these goods/services to the insured person.

6Section 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an applicant so long as the applicant sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan is reasonable and necessary.

7Section 15(2)(b) of the Schedule states that an insurer is not liable to pay for a medical benefit for expenses for the applicant related to goods and services of section 15(1) of the Schedule that exceed the maximum rate/amount established under the Schedule, except for expenses related to section 15.

8Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

9 Section 10 of R.R.O. 1990, Regulation 664, Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to the insured person , may award a lump sum of up to fifty percent of the amount to which the insured person was entitled to at the time of the award, with interest, on all amounts owing to the insured person.

File history

10The parties agree that the applicant filed a prior application² with the Tribunal.

11The applicant filed a second application on August 4, 2020, which is the subject matter currently before the Tribunal. The respondent partially approved a treatment plan (‘OCF-18’) which totaled $5,100.00 but was only approved in the amount of $1,400.00.

12The respondent took the position that the only issue for the Tribunal to determine was the hourly rate to be paid to the service provider and length of the treatment sessions.

13The applicant took the position that the treatment plan as a whole is reasonable and necessary, and that the OCF-18 should be funded in its entirety.

$3,700.00 ($5,100.00 less $1,400.00 approved by the respondent) for psychological treatment

Submissions and Evidence

14The applicant submitted that the entire balance of the treatment plan was reasonable and necessary as a result of his accident-related injuries, and that the respondent should be providing funding for the totality of this treatment.

15The disputed OCF-18 was submitted and requested funding for the following³:

Counselling, interpersonal relationships; hourly rate of $140.00 for 12, one and a half hour sessions - $2,520.00
Brokerage service - $140.00
Preparation service - $140.00
Provider travel time, provider to treatment - $1,680.00
Documentation support activity - $420.00
Documentation support activity for claim for - $200.00

Total - $5,100.00

16The applicant’s submissions focused on the severity of his injuries as a result of the accident, and the reasonable and necessary aspect of the disputed OCF-18.

17The applicant was evaluated via a section 25 psychological assessment by Brigette Neufeld, registered psychotherapist, and Leanne Wagner, psychological associate. In the section 25 report⁴ the authors found that the applicant displayed pain behaviors and had not fully returned to work due to his pain. Ms. Neufeld and Ms. Wagner reported that the applicant’s quality of life was impacted by the accident and caused issues with the applicant’s sleep, mood, pain levels, vision, and activities of daily living (“ADL”s).

18The section 25 assessment contained a finding that the applicant had a diagnosis of adjustment disorder with mixed anxiety and depressed mood and recommended the applicant attend 12 sessions of counselling and an in-vehicle assessment to ensure the applicant did not suffer from vehicle specific phobia.

19The applicant participated in a section 44 psychosocial assessment by Dr. Amena Syed, neuropsychologist⁵. Dr. Syed also found that from a psychological perspective, the applicant had reached maximal medical recovery. This section 44 insurer examination was scheduled to assess an OCF-18 that is not before the Tribunal.

20Dr. Syed agreed that the applicant suffered from adjustment disorder with mixed anxiety and depressed mood and that psychological treatment was warranted.

21The applicant also relied on the clinical notes and records of his general physician, Dr. Nirmala Gengatharan. Dr. Gengatharan recommended that the applicant attended individualized cognitive behavior therapy for stress management⁶.

22The applicant was reassessed by Dr. Syed⁷ via section 44 assessment⁸, where Dr. Syed found that the applicant’s request for a biopsychosocial assessment was reasonable and necessary, but only in the amount of $1,322.07 and not $2,090.00, as proposed; the respondent approved the treatment based on seven and a half hours of treatment at an hourly rate of $149.61⁹. The respondent further stated that as the service provider is a social worker and not a psychologist, the respondent submitted it would fund an hourly rate of $100.00 for a social worker in private practice and $58.19 for a social worker providing psychotherapy under supervision. Based on this, the respondent adjusted the hourly rate of the proposed treatment to $100.00 per hour.

23None of the section 44 assessments relied upon addressed specifically addressed the OCF-18 being disputed.

24The applicant attended a section 25 biophysical assessment¹⁰, conducted by Dr. Nazila Isgandarova, social worker. Dr. Isagandarova recommended¹¹ that the applicant attend 12 social work counselling sessions of one a half hour, twice per week to address the applicant’s anxiety, social abilities and other psychological injuries.

25The applicant submitted that based on the section 25 assessment of Dr. Isagandarova, the applicant required community integration to assist him in having some quality of life¹². The applicant also relied on the disputed OCF-18¹³, where Dr. Isagandarova specifically recommended in-home social work counselling for the applicant to help him with his community integration.

26The applicant argued that as a result of the respondent’s refusal to fund the OCF-18 in its totality, the respondent “constructively denied” the applicant’s OCF-18. The applicant argued that this was because the doctor could not provide the proposed treatment due to the respondent’s significant fee reduction¹⁴, which the applicant calculated amounted to only 72.5% of the proposed treatment, and therefore, is a constructive denial of the treatment plan.

27The applicant concluded his argument by reminding the Tribunal that he has been suffering from psychological and social impairments for over four years, and three years from the date of the disputed OCF-18.

28The respondent submitted that the balance of the OCF-18, meaning the $3,700.00 claimed by the applicant, is not payable to the applicant. The respondent submitted that the OCF-18 was approved, subject to the limits of the Professional Fees Guideline¹⁵ (the “PSG”).

29The respondent based itself on the fact that the hourly rates in the OCF-18 do not comply with the PSG. The respondent argued that Dr. Isgandarova is a social worker, charging an hourly rate of $140.00, which does not comply with the PSG.

30The respondent relied on correspondence to the applicant¹⁶, where the respondent informed the applicant that the OCF-18 was approved, subject to the¹⁷ PSG limits.

31The correspondence from the respondent stated that as Dr. Isagandarova is a social worker and not a psychologist, the hourly rate would be $100.00 for a social worker in private practice and $59.19 for a social worker providing psychotherapy under supervision. The respondent adjusted the hourly rate to $100.00 and agreed to pay for 12, one-hour sessions and not the 12, one and a half hour sessions proposed by Dr. Isagandarova.

32The respondent stated it approved one-hour sessions of treatment, as the applicant had not provided what it described as a compelling explanation for one and a half hour sessions.

33The applicant disagreed with this, and argued that without the respondent providing valid, medical reasons why the counselling sessions should be reduced to hour one in length, the Tribunal should not reduce the length of these sessions.

34The respondent also indicated that it would not pay for the transportation costs for the social worker to provide in-home counselling as the respondent submitted that this was not reasonable and necessary, as the applicant did not require the social worker to travel to his residence. The respondent argued that the transportation aspect of the OCF-18 was denied as the applicant provided no explanation for such and why he required transportation.

35The applicant took issue with this, and relied on Dr. Isgandarova OCF-18, which recommended in home, social work counselling.

36The respondent also submitted that it would not pay for goods or services related to planning, preparing or brokering the OCF-18, as this service was already compensated via the $200.00 maximum paid for the completion of the OCF-18 under the PSG.

37The respondent also argued that the applicant was not evaluated via a section 44 assessment for this particular, disputed OCF-18, as the only disputed component of the OCF-18 was the rates of service in relation to the PSG.

38The applicant disagreed that the only issue in dispute was in relation to the OCF-18’s rates in relation to the PSG but rather, the respondent was making medical decisions in relation to the applicant’s treatment without updated medical information. Specifically, that the applicant only required one hour counselling and that the in-home social worker services requested by the applicant would be completed in-office and the transportation costs for the service provider was denied.

39The applicant also noted that the respondent had, in its submissions, incorrectly suggested the transportation cost was associated with transporting the applicant, rather than the service provider.

40The applicant took the position that the respondent unilaterally decided that the recommendations of its own assessors regarding the PSG rates were to be prioritized over the recommendations of the applicant’s own medical professionals¹⁸ and relied on the decision of D.J. v Aviva Insurance Company of Canada¹⁹, where the Tribunal found that the applicant was entitled to psychotherapy with a social worker, as psychotherapy can be provided by a social worker under the Regulated Health Professions Act, 1991²⁰.

41The applicant also relied on A.S. vs. Aviva Insurance Company²¹, where the applicant sought payment for a partially approved treatment plan for psychological treatment. In A.S., the Tribunal found that because the treatment providers were a psychotherapist under the supervision of a psychologist, the treatment should be funded based on the hourly rate of $149.61 per hour as opposed to the $59.19 hourly rate offered to unregulated providers and counsellors. The Tribunal determined that as both psychologists and psychotherapists provide the same cognitive behavior therapy, they should be paid the same hourly rate.

42The applicant also argued that the respondent failed to schedule or arrange the appropriate section 44 assessment to determine if the OCF-18 was reasonable and necessary, as the respondent took the position that the only issue was the PSG rates being claimed on the OCF-18.

43The applicant submitted that the respondent failed to fully understand or appreciate the “essential nature” of the support offered by a social worker, namely their emphasis on connecting patients to their available community and support services, which he argued supported his need for in-home services.

Analysis

44After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the appropriate hourly rate for the OCF-18 is $100.00, meaning the rate for a social worker in private practice.

45Though I understood the applicant’s position regarding constructive denials, this position was not supported by the Schedule nor caselaw. Therefore, I found it unpersuasive when considering that the PSG hourly rates are supported by such.

46In terms of the applicant’s submissions regarding the matter of D.J. v Aviva Insurance Company of Canada²², though I understood them, I found them to be less relevant, as in D.J., the Tribunal was asked to address the hourly rate of a psychotherapist under the supervision of a psychologist; in the current matter, the service provider is a social worker, and not under supervision and therefore this case is not persuasive.

47After considering the submissions and evidence of the parties, and based on a balance of probabilities, I find that the applicant is entitled to 12 counselling sessions, with each having a duration of one- and one-half hours.

48I was more persuaded by the applicant’s position that the respondent had reduced the applicant’s requested session length without proper medical reasons. I agreed with the applicant’s argument that had the respondent wished to modify the OCF-18’s recommendations, the respondent ought to have, at a minimum, requested an addendum of Dr. Syed’s 2019 section 44 assessment. Without more synchronous medical evidence, I am left at a loss regarding the basis for the respondent’s actions.

49The applicant relied on the decisions of A.B. v Guarantee Insurance²³ and 16-002126 v Royal and Sun Alliance Insurance ²⁴ which I also found persuasive. Similar to the subject matter, both cases involved respondent’s denying one and a half hour sessions of psychological treatment.

50I am persuaded by this decision and find in these cases are relevant; In A.B, and the current application, the respondent failed to provide a factual basis to deny the treatment, and unilaterally reduced the treatment plans to one hour.

51In 16-002126, like the current application, the respondent reduced the applicant’s psychological treatment sessions by a half an hour based on not being reasonable and necessary, without specifically explaining the basis for this reduction.

52I also found 16-002126 to be relevant and convincing, as in that matter, psychological experts determined that the applicant had similar psychological impairments as a result of the accident. However, as the respondent did not provide specifical reasoning as to why the extra half hour of the proposed OCF-18 was unreasonable and unnecessary, the Tribunal accepted the applicant’s position.

53Therefore, the applicant is entitled to the 12 sessions for a duration of one a half hours.

54After considering the submissions and evidence of the parties, and based on a balance of probabilities, the applicant is not entitled to payment for the provider’s travel time.

55The applicant has provided a lengthy and detailed history of his psychological struggles as a result of the accident, which I accepted. The respondent did not refute this history, but simply argued that the applicant had not provided compelling medical evidence to support this request, namely that Dr. Isagandarova’s travel time to the applicant was reasonable and necessary.

56I disagreed with this characterization of the evidence provided by the applicant. I accepted that this request is reasonable, given the applicant’s injuries as observed by Dr. Isgandarova ²⁵. The applicant’s accident was over five years ago, and he is still struggling with psycho-social impairments related to isolation, community and social connections.

57However, upon reviewing the applicant’s evidence, I note that the only document that explicitly recommends that the applicant take part in at home social work counselling is the disputed OCF-18.

58The OCF-18 states that the applicant would benefit from home social work counselling to assess how the applicant functions in his natural environment and determine how to handle his everyday stressors.

59Though Dr. Gengatharan did recommend that the applicant attended individualized cognitive behavior therapy for stress management²⁶, the doctor did not specify this needed to be in a home environment.

60Without more contemporaneous and persuasive evidence from the applicant’s medical professionals, I am less persuaded that the travel cost time for Dr. Isgandarova is necessary for the applicant and decline to order it payable.

61After considering the submission and evidence of the parties, and based on a balance of probabilities, I find that the applicant is entitled to $200.00 for all of the documentation related to the OCF-18.

62The applicant did not lead any direct evidence as to why Dr. Isgandarova required documentation fees beyond the $200.00 prescribed by the PSG.

63Without further information to this regard, I am bound by section 15(2)(b) of the Schedule, which states that the respondent is not liable to pay for medical goods or services that exceed the maximum rate.

64Therefore, the applicant is not entitled to $140.00 for brokerage services, $140.00 for preparation time and $420.00 for the documentation support activity for the OCF-18.

65The applicant is entitled to a total of $2,000.00 for the disputed OCF-18, which accounts for:

$1,8,00.00 for counselling, interpersonal relationships; hourly rate of $100.00 for 12, one and a half hour sessions;
$200.00 for the OCF-18 documentation support.

66As the respondent had partially approved the OCF-18 in the amount of $1,400.00, the applicant is entitled to the balance, being $600.00.

Interest and Award

67Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

68As I have found that the applicant is owed the $600.00 balance on the disputed OCF-18, he is entitled to interest on such.

69Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled plus interest on all amounts owing.

70It is well settled that an award should not be ordered simply because an insurer made an incorrect decision; instead, in order to attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate²⁷.

71The applicant argued that as the respondent failed to properly adjust and assess the applicant’s requested treatment via a section 44 assessment, he is entitled to a special award.

72The respondent submitted that the applicant is not entitled to an award, as the respondent was following the PSG rates and should not be penalized for such, as seen in A.A. v Aviva General Insurance Company²⁸.

73In this case, I was more persuaded by the respondent’s position, specifically that the respondent did not unreasonably withhold or delay payment of balance of the disputed benefit, the $600.00 owing. This is based on the respondent’s position and evidence demonstrating that their denial was based on the PSG rates and not because of excessive, imprudent, stubborn, inflexible, unyielding or immoderate behavior. Therefore, the applicant is not entitled to an award.

CONCLUSION and order

74The applicant is entitled to the $600.00 balance on the OCF-18 for psychological treatment.

75The applicant is entitled to interest on the owing balance of the OCF-18.

76The applicant is not entitled to an award.

Released: August 9, 2022