Derek Germano v. Aviva General Insurance Company, 2022 CanLII 87716

Citation: Germano v. Aviva General Insurance Company, 2022 ONLAT 20-009474/AABS

Licence Appeal Tribunal File Number: 20-009474/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:

Derek Germano

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Wendy H. Sokoloff, Counsel

For the Respondent: Suzanne A. Clarke, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Derek Germano, (“the Applicant”), was involved in an automobile accident on November 15, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The applicant was denied certain benefits by Aviva General Insurance Company, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues to be decided in the hearing are:

i. Is the Applicant entitled to a medical benefit in the amount of $1,297.40 for physiotherapy services recommended by Proactive Health & Performance Clinic in a treatment plan dated October 18, 2019?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,197.60 for physiotherapy services recommended by Proactive Health & Performance Clinic in a treatment plan dated October 7, 2020?

iii. Is the Applicant entitled to a medical benefit in the amount of $3,583.69, less $1,376.97 approved by the Respondent, for psychological services recommended by York Region Psychological Services in a treatment plan dated May 28, 2019?

iv. Is the Applicant entitled to payment for the cost of an Auto Insurance Standard invoice (OCF-21), in the amount of $2,200.00 for psychological services recommended by York Region Psychological Services in a treatment plan dated December 12, 2018?

v. Is the Applicant entitled to an award under Ontario Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that that Applicant is not entitled to the treatment and assessment plans in dispute. No interest or an award is payable.

BACKGROUND

4The Applicant was the driver of a vehicle that was struck on the side by an oncoming vehicle that had detached from a tow truck that was pulling it. Paramedics attended at the scene of the accident but did not take the Applicant to the hospital. He went to his family physician the following day and complained of back stiffness, left shoulder pain, headaches, and numbness and tingling in his left foot. The Applicant started physiotherapy a few days later to treat his accident-related injuries. He continued to engage in physiotherapy for about a year following the accident. At that point, the Respondent denied funding for physical treatment. The Applicant disputes this decision and seeks a finding that the two physiotherapy treatment plans in dispute are reasonable and necessary.

5The Applicant developed psychological injuries as a result of the accident. The Respondent approved funding for psychological services however, there remains a dispute over whether the Respondent paid for psychological services and a determination of the service provider’s hourly rate.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the 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 the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.¹

Physiotherapy Treatment Plans, dated October 18, 2019 and October 7, 2020

8The Applicant did not address the physiotherapy treatment plans individually. Instead, he submits that the denied physiotherapy treatment would have aided his recovery which resulted in his “condition becoming chronic in nature”. He further submits that the Respondent’s refusal to fund the disputed physiotherapy treatment plans has led to the development of severe emotional difficulties including anxiety and depression.

9The Applicant directs me the following documents to support his claim;

a. A clinical note by Dr. V. Utsalo, the Applicant’s family physician, dated November 16, 2018. That note documents that the Applicant was involved in an accident and reported back stiffness, left shoulder pain, headaches, and numbness and tingling in his left foot;

b. A clinical note by Dr. Utsalo dated October 24, 2019, whereby continued physiotherapy and massage was required for accident-related neck and back pain;

c. A clinical note by Dr. Utsalo dated November 15, 2020 which indicates the Applicant reported that physical treatment was helping; and

d. A disability certificate dated November 19, 2018, which lists whiplash, spine strain/sprain, tension headaches, and generalized anxiety disorder.

10In response the Respondent submits that the evidence does not support the Applicant’s claim that the denial resulted in the development of severe emotional difficulties and a chronic condition. According to the Respondent, the October 24, 2019 recommendation was to secure funding from the Applicant’s wife’s insurer for massage and physiotherapy.

11The Respondent also submits that the October 18, 2019 physiotherapy treatment plan is not reasonable and necessary because the Applicant resumed full function in all aspects of his life and had reached maximum medical recovery. The Respondent relies on the insurer’s examination (“IE”) report of Dr. Czok, dated February 21, 2020 to support its position.

12Dr. Czok noted that the Applicant’s main complaint was neck and upper back pain that is aggravated by prolonged sitting and standing. It is also noted that the Applicant reported that his injuries have improved by 60% since the accident and that he has not attended therapy since October 2019 because he found physiotherapy to be unhelpful. According to Dr. Czok’s report, the Applicant reports that he does an in-home exercise program two to three times per week to address his residual injuries, but that rehabilitative therapy was otherwise unhelpful.

13Dr. Czok examined the Applicant and found full active range of motion of the cervical spine and the rest of his body, including his back and bilateral shoulders. Neurological exams were normal. Dr. Czok concluded that the Applicant exhibited no ongoing signs of impairment and that the Applicant should continue with his self-led exercise program.

14The Respondent submits that the evidence does not support a finding that the October 7, 2020 physiotherapy treatment plan is reasonable and necessary.

15The Respondent directs me to the IE report by Dr. J. Gordon, physiatrist, dated December 21, 2020. Dr. Gordon concluded that the Applicant did not suffer from any ongoing accident-related impairments and had reached maximum medical improvement. Dr. Gordon opined that further facility-based treatment was not expected to provide any additional benefit.

16Dr. Gordon assessed the Applicant and noted that the Applicant reported that his pain worsened since the accident, but he continues to attend treatment bi-weekly. The Applicant’s main complaints to Dr. Gordon were headaches and low, mid, and upper back pain. Dr. Gordon assessed the Applicant and found that the Applicant had lumbar spine range within normal functional limits and full range of motion in the cervical spine and extremities. Dr. Gordon concluded that the October 7, 2020 physiotherapy treatment plan was not reasonable and necessary because the Applicant had no ongoing accident-related impairments, had reached maximal medical improvement and is not expected to benefit from facility-based treatment.

17In addition, the Respondent submits that the Applicant’s physical complaints are related to injuries sustained while participating in recreational activities. Its submissions direct me to a note by Dr. Utsalo dated October 16, 2020, whereby the Applicant complained of bilateral foot issues after playing volleyball and was referred to physiotherapy for a right ankle sprain and a sprained toe on his left foot.

18I find that the Applicant has not met his burden to demonstrate that the physiotherapy treatment plans are reasonable and necessary for the Applicant’s accident-related injuries. From a physical perspective, I conclude that the Applicant sustained uncomplicated soft-tissue injuries to his neck and back with no residual impairments. On November 15, 2019, Dr. Utsalo noted that the Applicant reported that physiotherapy is helping, but there is no evidence that demonstrates that the Applicant receives any therapeutic benefit from engaging in treatment – he provided no treatment or other records which document his response to treatment. In the same clinical entry, Dr. Utalo noted that the Applicant had normal range of motion, which is consistent with Dr. Czok’s findings.

19I find the clinical records from 2018 and disability certificate to be uncompelling. The initial visit to Dr. Utsalo and the disability certificate are not contemporaneous to the treatment plans in dispute. The visit with Dr. Utsalo and the examination for the disability certificate are unpersuasive because they occurred during the acute phase of the Applicants recovery, which is about a year before the earliest physiotherapy treatment plan in dispute. There is no referral for physiotherapy or any therapy in the November 15, 2018 note by Dr. Utsalo. The October 24, 2019 clinical note by Dr. Utsalo approves of physiotherapy and massage therapy, but does not refer to the subject accident

20The disability certificate is uncompelling evidence in favour of finding that the disputed physiotherapy treatment plans are reasonable and necessary as a result of the accident. The disability certificate is from a year prior and anticipated an estimated duration of disability of 9-12 weeks. This document is not contemporaneous with the treatment plans in dispute.

21It is not reasonable and necessary to fund ongoing physical treatment for uncomplicated soft-tissue injuries that were expected to impair the Applicant for no longer than 12 weeks and cause no functional impairment.

Psychological Treatment Plan, dated May 28, 2019

22The parties agree that psychological treatment is reasonable and necessary for the Applicant. As issue is the rate of the service provider. For the following reasons, I find that the Applicant has not met his onus to demonstrate entitlement to the enhanced rate he seeks.

23The Respondent agreed to fund psychological treatment however, it specified that the hourly rate of pay for psychologists would be $149.61 and $58.19 for services provided by a psychotherapist or social worker. Eventually, the Respondent agreed to pay $100.00 per hour for services rendered by the Applicant’s service provider, who is a registered social worker.

24The Applicant submits that the treatment plan is reasonable and necessary because he suffers from generalized anxiety disorder and this condition necessitates treatment. He provided no submissions regarding why a social worker would be entitled to an enhanced hourly rate.

25The fee for services provided through the Schedule is governed by the Professional Services Guideline (“the PSG”)², as outlined in section 49(1) of the Schedule. Pursuant to the PSG, the Respondent is not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates set out in the PSG. The maximum hourly rate for psychologists and psychological associates is $149.61. The rate provided for unregulated professionals, such as psychometrists, is $58.19 per hour.

26The evidence demonstrates that the Applicant received psychological treatment from a provider who is a registered Social Worker with the Ontario Association of Psychometrists and Psychotherapists. The hourly rate for a social worker is not included in the PSG.

27The Applicant has provided no information to demonstrate that the service provider is a psychologist. The curriculum vitae before me confirms the Respondent’s position that the service provider has not achieved the status of a psychologist. Thus, the service provider is not entitled to a psychologist’s rate.

Payment of the Psychological Assessment

28The Respondent approved funding for the psychological assessment on the caveat that the services be billed by the hour, and that the hourly rate for a psychologist is $149.61 and the hourly rate for a psychotherapist at $58.19. The Respondent’s position on the approval was clearly noted in the Respondent’s letter dated April 10, 2019. The Applicant never disputed any aspect of the Respondent’s approval prior to engaging in the services.

29The Applicant claims that the Respondent failed to pay for the assessment for almost two years and that it has interfered with his relationship with the treating psychologist. He submits that the Respondent’s failure to pay the approved assessment has denied him of the opportunity to negotiate with his psychologist for the treatment recommended by his treating practitioners. He also claims that this conduct has exacerbated his condition.

30The Respondent highlights that it rendered full payment for the psychological assessment prior to this hearing. It submits that any delay in the payment of the psychological assessment was due to the service provider’s failure to supply information pertaining to the hours worked by the assessors.

31While not raised by the parties, it appears that this dispute pertains to the Respondents denial of liability to pay an amount under an invoice on the grounds that it requested information from the provider under section 46.2(1) of the Schedule. That section permits the Respondent to request information from a service provider in order to assist it in determining its liability for the payment. Pursuant to section 55(1)3, the Applicant shall not apply to the Tribunal if this circumstance exists.

32In this case, the Respondent agreed to fund the assessment on the grounds that the services provided are billed at the hourly rate of the specific service provider involved. The Respondent requested a breakdown of the services provided in order to satisfy its liability to pay for the assessment. That information was provided on May 6, 2021 and payment was made no later than May 12, 2021.

33If I am wrong and the Applicant is permitted to bring this dispute before the Tribunal, I find that the Applicant has not met his onus to demonstrate that he is entitled to interest or an award.

34I am unsure of what remedy the Applicant seeks relating to this issue. I can only infer from the submissions that he seeks a finding that interest is payable or that he is entitled to an award on account of the withholding of payment. In any event, I find that the evidence does not support an award or interest in this scenario.

35The Applicant provided no submissions or evidence on when the service provider sought payment for the assessment. I am unable to determine whether interest is payable if I am unable to determine when payment was due. This is because interest is only payable on the overdue payment of benefits, pursuant to section 51 of the Schedule.

36Similarly, the Applicant provides no evidence to support his claim that this scenario has interfered with the relationship between the Applicant and the psychologist. I suspect that this argument is meant to address the Applicant’s claim for an award however, he has not demonstrated that the Respondent’s refusal to pay was unreasonable, and the evidence demonstrates the opposite. As I noted, the Respondent agreed to pay for the assessment on the basis of the specific service provider’s hourly rate. It requested a breakdown of the services provided by the specific service provider in order to determine the amount payable. The Respondent paid the amount claimed within a week of receiving that information. Thus, I see no unreasonable withholding or delayed payments.

AWARD and INTEREST

37I find no basis to render an award or find interest payable.

38The Applicant may be entitled to an award of up to 50% of the amount withheld or delayed if it I determine that the Respondent unreasonably withheld or delayed the payment of benefits.

39I see no evidence of unreasonably withheld or delayed payments and dismiss the Applicant’s claim for an award. The evidence shows that the Respondent agreed to fund the psychological assessment and treatment at a rate that was consistent with the PSG. It also noted that it would require information to confirm the services provided and who conducted those services. There is no evidence demonstrating that the service provider gave that information before May 6, 2021 and the invoice was paid before May 12, 2021, less than a week later. Thus, I see no unreasonable withholding of benefits.

40Interest is only payable on overdue payment of benefits. Having found that no benefits in dispute are payable, it follows that no interest is payable as well. Similarly, I see no interest payable on the disputed psychological assessment plan, considering the lack of evidence demonstrating that the relevant information was provided anytime sooner than May 6, 2021.

CONCLUSION

41The Applicant was involved in an accident and sustained psychological injuries as well as uncomplicated soft-tissue injuries. He has since recovered from the accident and has no functional deficits. As a result, I find that the physiotherapy treatment plans are not reasonable and necessary.

42The Applicant has not met his onus to demonstrate that he is entitled to the enhanced hourly rate he seeks, and the evidence confirms that the Respondent paid for the psychological assessment it approved.

43I find no evidence showing that any benefits were unreasonably withheld or that payment went overdue. Thus, the Applicant is not entitled to an award or interest.

44The Application is dismissed.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
2. 2Financial Services Commission of Ontario – Professional Services Guideline, Superintendent’s Guideline no. 03/14, September 2014.