Citation: Pathak v. Aviva General Insurance, 2023 ONLAT 21-012706/AABS

Licence Appeal Tribunal File Number: 21-012706/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:

Varinder Pathak

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Yanira E Monterroza, Paralegal

For the Respondent:

Catherine Zingg, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Varinder Pathak, the applicant, was involved in an automobile accident on January 27, 2020, 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 benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issue in dispute is:

i. Is the applicant entitled to $4,918.00 ($7,322.94 less $2,404.94 approved) for psychological services, proposed by A & B Medical Assessments in a treatment plan ("OCF-18") dated February 9, 2021?

RESULT

3I find that the applicant is entitled to $188.00 for the sound machine and the relaxation CD/DVD, plus interest in accordance with s. 51 of the Schedule. However, the applicant has not established that the remaining outstanding balance of the treatment plan is reasonable and necessary.

ANALYSIS

4To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

OCF-18 dated February 9, 2021 for psychological services

5I find that the applicant has established that the $188.00 for the sound machine and relaxation CD/DVD is reasonable and necessary. However, he has not met his burden to prove that the remaining balance of the OCF-18 is reasonable and necessary.

6The applicant's psychological impairments are not in dispute. Both the applicant's and respondent's assessors have found that the applicant suffers from accident-related psychological impairments. In a December 18, 2020 s. 25 psychological assessment report, Dr. Sharifzadeh diagnosed the applicant with post-traumatic stress disorder – severe, major depressive disorder, with severe anxious distress, anxiety disorder, somatoform disorder, and alcohol use disorder. The respondent's assessor Dr. Marino, found in his initial s. 44 psychological assessment report dated October 14, 2020, that the applicant met the criteria for an adjustment disorder with mixed anxiety and depressed mood and driving related anxiety. In a subsequent addendum dated June 14, 2021, Dr. Marino added a diagnosis of alcohol use disorder.

7The applicant submitted an OCF-18 in the amount of $7,322.94 for psychological treatment. The respondent partially approved the OCF-18 in the amount of $2,404.94, on the basis of Dr. Marino's August 3, 2021 addendum. The applicant claims the balance of the denied portion of the treatment plan. Dr. Marino concluded that certain items were reasonable and necessary, and denied the remainder, as follows:

Proposed Item

Amount claimed

Amount approved by the Respondent

10 therapy sessions at 1.5 hrs per session

$2,244.20

$1,496.13 (only 1 hr per session approved)

Reassessment (3 hrs requested)

$448.83

$224.42 (only 1.5 hrs approved)

Progress report (3 hrs requested)

$448.83

$224.42 (only 1.5 hrs approved)

OCF-18 Form Completion

$200.00

$200.00

Clinical notes per session

$210.00

$210.00

Client handouts and worksheets

$50.00

$50.00

CES medical device

$1,597.00

$0

Flash card kit for anxiety treatment , FC Deck, CBT wristband, CD

$199.00

$0

Flash card kit for depression treatment , FC Deck, CBT wristband, CD

$199.00

$0

Relaxation/CBT CD/DVD

$99.00

$0

Sound machine

$89.00

$0

VR Headset

$359.00

$0

VR Relaxation sessions (five 1 hr sessions)

$748.05

$0

Insights into Self-empowerment

$89.00

$0

Sessions Length/Provider Rate, Reassessment and Progress Report

8I find that the applicant has not met his burden to prove that the outstanding balance relating to the treatment sessions, reassessment and progress report preparation, is reasonable and necessary.

9The applicant has provided limited submissions as to why the additional session length, reassessment and preparation time is reasonable and necessary. He provides a general assertion that he suffers from a pre-existing alcohol dependency, which is a "complex" pre-existing issue. As such, he argues that additional time is required for treatment, reassessment and report preparation. However, although the applicant highlights pre-existing alcohol dependency as the reason additional treatment and assessment time was warranted, the progress report and therapy session notes have limited references to alcohol use. Rather, issues related to sleep, chronic pain, anxiety and mood were discussed regularly.

10Further, the respondent's assessor Dr. Marino found that one hour treatment sessions were reasonable and that the proposed three hours for reassessment and progress report preparation were excessive. I note that Dr. Marino expressly considered the applicant's alcohol intake when discussing his symptoms, but still determined that the time proposed in the OCF-18 was excessive. Without supportive evidence indicating why the additional time is required, I find that the applicant has not met his onus to prove that his pre-existing condition warrants the additional time proposed.

11In addition, the respondent has raised the issue of the applicable hourly rate for the treatment provider. The respondent submits that the psychological treatment was in fact provided by Ms. Anusha Gowda, MSW, RSW, under the supervision of Dr. Sharifzadeh, psychologist, and as such is subject to a lower rate. It cites Tribunal decisions Qian v Aviva Insurance Company, 2022 CanLII 81517 (ON LAT) and Germano v Aviva General Insurance Company, 2022 CanLII 87716 (ON LAT), in support of its claim. The respondent contends that that its Explanation of Benefits ("EOB") dated August 17, 2021 offered to pay the hourly rate of $100 per hour for a social worker, and that the rate offered was in accordance with the Professional Services Guideline. It argues that the applicant is obliged to submit evidence in support of a higher rate for a social worker.

12Although the applicant submits that hourly rates have not been an issue and that the only issue relates to the length of the treatment sessions, I do not agree. In partially denying the treatment plan, the EOB expressly states that if the treatment is not provided by Dr. Sharifzadeh, a different rate would apply, and offered $100 per hour for a social worker. Despite having the right of reply, the applicant has not cited any caselaw as to why a higher rate is warranted. Further, no evidence has been provided as to Ms. Gowda's qualifications in support of a higher rate, such as being a specialist in CBT or information about her hourly rate for uninsured patients. Without such information or submissions, I am unable to find that the outstanding balance for the treatment sessions is reasonable and necessary.

Sound machine and CD/DVD program

13I find that the applicant has established that the sound machine and the breathing techniques CD/DVD program are reasonable and necessary.

14The applicant has consistently reported issues with sleep and insomnia to all of his assessors. Sleep issues and relaxation techniques have also featured prominently in the applicant's psychotherapy sessions. I find the applicant's submissions that the sound machine and breathing technique program would support him with relaxation techniques and sleep hygiene, to be persuasive. Further, I find the prices of $89.00 and $99.00, respectively, to be cost effective and reasonable.

CES medical device, VR headset and VR sessions

15I find that the applicant has not established the reasonableness and necessity of the cranial electrotherapy stimulation (CES) machine, virtual reality headset and virtual reality sessions.

16The OCF-18 contained minimal information about the proposed devices. The CES machine is described as "using low-level electrical current to treat anxiety-depression and insomnia". The VR headset is described as being "developed for mental health treatments". The applicant submits two articles in support of these devices, however, I find them to be of limited persuasive value. The article with respect to CES is from 2012, more than ten years ago. The article with respect to VR treatment for CBT, while more recent, is self-limited by the fact that it was a review of only a limited number of studies. The applicant does not provide any other evidence in support of his claim, such as a specific recommendation or explanation from Dr. Sharifzadeh as to how these devices would assist in meeting the treatment goals. Further, the cost of the CES machine is substantial, $1,597.00, however, no information or submissions were provided about the machine itself and whether the proposed cost was reasonable.

17The respondent denied the listed items on the basis of Dr. Marino's addendum, who stated that there was no rationale in the report for these items/services and that such services could be provided directly in counselling sessions. Dr. Marino further found that there was no justification for virtual reality intervention. I agree with the respondent that the applicant has not provided sufficient evidence as to why these devices are required outside of the therapeutic process. Further, I note that in the September 30, 2021 progress report, Dr. Sharifzadeh did not recommend any of these proposed devices, but rather recommended an additional 12 sessions of counselling, stating that the applicant felt that the psychotherapy sessions were an "integral part" of his recovery. As such, I find that the applicant has not met his onus to prove the reasonableness and necessity of the CES machine, VR headset or VR sessions.

Flash card kit for anxiety/depression treatment, FC Deck, CBT wristband, CD and Insights into Self-empowerment

18I find that the applicant has not established that the proposed items are reasonable and necessary. The OCF-18 itself did not provide clarification or explanation of the proposed items other than to state that it is for anxiety and depression treatment and support between sessions, and that the "Insights into Self-Empowerment" is educational material.

19The applicant's submissions further do not provide additional information, but simply generally state that the items will enable the applicant to "work through his anxiety and depression" and allow him to "become educated about his situation". No particulars have been provided about what these materials and items are, and how they will be applied in treating the applicant's psychological impairments. Without specific submissions on these items, I am unable to find that the applicant has met his onus to prove that they are reasonable and necessary.

Interest

20The applicant is entitled to interest pursuant to s. 51 of the Schedule, with respect to the sound machine and breathing technique CD/DVD.

ORDER

21For the foregoing reasons, I find that the applicant is entitled to $188.00 for the sound machine and the breathing technique CD/DVD, plus interest. The applicant is not entitled to the remaining outstanding balance of the treatment plan.