Carr v. Aviva General Insurance Company, 2023 CanLII 122942

Citation: Carr v. Aviva General Insurance Company, 2023 ONLAT 21-003990/AABS

Licence Appeal Tribunal File Number: 21-003990/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:

Bonnie Carr

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Patrick D’Aloisio, Counsel

For the Respondent: Christine McKenna, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Bonnie Carr (the “applicant”) was involved in a motor vehicle accident on April 24, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied a number of treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are in dispute:

1. Is the applicant entitled to a medical benefit for $211.60 ($2,450.00 less the amount approved) for transportation costs in relation to a treatment plan/OCF-18 proposed by York Region Psychological Services submitted July 16, 2019 and denied August 7, 2019?

2. Is the applicant entitled to a medical benefit for $1,255.24 ($3,134.85 less the amount approved) for a treatment plan/OCF-18 proposed by York Region Psychological Services submitted October 30, 2019 and denied November 19, 2019?

3. Is the applicant entitled to $2,200.00 for occupational therapy services for a treatment plan/OCF-18 proposed by Deena Rogozinsky submitted May 13, 2020 and denied May 26, 2020?

4. Is the applicant entitled to $599.26 ($2,639.91 less the amount approved) for occupational therapy services for a treatment plan/OCF-18 proposed by Deena Rogozinsky submitted May 27, 2020 and denied June 8, 2020?

5. Is the applicant entitled to a medical benefit for $1,001.26 ($2,602.51 less the amount approved) for a treatment plan/OCF-18 for psychological services proposed by York Region Psychological Services submitted February 7, 2021 and denied February 25, 2021?

6. Is the applicant entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule?

3In an email sent to the Tribunal on December 8, 2022, the applicant noted that issues #3-6 and issue #9 as listed in the case conference report and order (“CCRO”) dated December 20, 2021 that set this matter down for a hearing were being withdrawn. This was also noted by the respondent in submissions. Accordingly, I am not considering these matters here and have removed them from the list of issues in dispute.

RESULT

4I find that the applicant is not entitled to any of the treatment plans in dispute, nor interest.

ANALYSIS

5To be entitled to a treatment plan under ss. 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

Transportation Costs in an OCF-18 Partially Denied August 7, 2019

6I find that the applicant is not entitled to the $211.60 denied portion of the treatment plan for a psychological assessment dated July 16, 2019 (issue #1), as she has not demonstrated it to be reasonable and necessary.

7According to submissions, this dispute is actually about a total of $250.00 in transportation expenses that were included in a treatment plan for a psychological assessment in the amount of $2,450.00 dated July 16, 2019. Aviva approved $2,200.00 for the assessment, but denied the transportation expenses line item and explained in correspondence dated August 7, 2019 that it calculated the accurate transportation expenses amount to be $38.40 (which is presumably why the CCRO lists the disputed amount as $211.60).

8The applicant submits that these transportation costs should be deemed as reasonable and necessary because they were the direct result of her having to rely on transportation services with Lyft to reach the psychological assessment clinic. Specifically, the applicant claims that she required Lyft as she found that “her core hurts when she is trying to keep her balance” when taking a bus, a complaint that she made to a treating physician at the Markham-Stouffville Hospital Urgent Care Clinic on August 13, 2019.

9The respondent counters that this expense is not in accordance with s. 25(4) of the Schedule nor the governing Superintendent’s Guideline No. 04/16: Transportation Expense Guideline (“Transportation Guideline”). It submits that transportation costs should be $38.40, based on the 146km round-trip distance between the applicant and the clinic and the rate per kilometre and the 50-km deductible as set in the Transportation Guideline ($0.40 x 96km = $38.40). In addition, the respondent submits that no transportation expenses should be awarded as the applicant has not met her burden and demonstrated this fee to be reasonable and necessary in accordance with s. 25(4).

10I agree with the respondent. In the absence of submissions from the applicant disputing the calculations of the respondent regarding its assessment of what transportation expenses would be allowable, I accept the respondent’s position that $38.40 is the accurate amount. Moreover, I accept the respondent’s argument that no transportation costs should be awarded due to the applicant’s failure to prove them to be reasonable, in accordance with s. 25(4) of the Schedule. The “core hurts” argument is not persuasive, as this is solely the self-reporting of the applicant at a single appointment with a physician.

11Correspondingly, the applicant is not entitled to the unapproved $250.00 in transportation expenses in this treatment plan, nor interest.

Psychological Services OCF-18s Partially Denied November 19, 2019 & February 25, 2021

12I find that the applicant is not entitled to the unapproved amounts of two treatment plans for psychological services denied November 19, 2019 ($1,255.24) and February 25, 2021 ($1,001.26), listed as issues #2 and #5 above, as she has not demonstrated them to be reasonable and necessary.

13Both treatment plans in dispute were completed by Dr. Hannah Rockman, psychologist. They recommend 1.5-hour psychological therapy sessions for adjustment and phobic anxiety disorders to be conducted by Pamela Li, registered psychotherapist. The insurer partially approved the plans in correspondence sent on the dates noted above. It approved one-hour sessions in place of the 1.5-hour sessions in the plans, and it denied the hourly rate sought for the therapy sessions. The insurer also denied expense line items for progress reports and educational material listed in the plan denied on November 19, 2019, and sought additional information on them from the applicant.

14The applicant argues that these psychological services treatment plans should be deemed reasonable and necessary and notes that the respondent denied them on “arbitrary grounds.” She does not provide specific submissions on the amounts denied in these treatment plans.

15The respondent maintains its partial denials, largely on the basis that the plans proposed 1.5-hour sessions of psychotherapy at a rate of $149.61 per hour. It argues that a need for 1.5-hour sessions instead of the standard one-hour sessions has not been substantiated by the applicant, and that $100.00 per hour is the appropriate hourly rate for the psychotherapist required to conduct these sessions, not the $149.61 rate for psychologists as listed in the Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014. Although no rate for psychotherapists is provided in the Professional Services Guideline, the respondent submits that $100.00 is an appropriate middle ground between $58.19 listed for an unregulated professional and the $148.19 for a psychologist. In addition, the respondent claims that the applicant did not reply to its queries about the line items in the treatment plan denied November 19, 2019.

16I am not persuaded by the applicant’s arguments that the lengthier sessions of therapy are required, nor that the higher hourly rate is warranted. Most notably, the applicant provides minimal argument or evidence for either claim in written submissions. The applicant does not refer specifically to these matters, instead arguing for the entirety of the treatment plans being reasonable and necessary and noting unrelated concerns from the insurer’s log notes about the Minor Injury Guideline (“MIG”). As the applicant did not file a reply, she does not directly address the respondent’s submissions on the length of sessions, the hourly rate, or the allegation that the applicant did not respond to questions about some items on the November 19, 2019 plan.

17While the applicant does direct me to a psychological progress report dated February 9, 2021 wherein Dr. Rockman recommends 1.5-hour sessions due to a need to “incorporate relaxation techniques,” I assign this little weight. Dr. Rockman does not explain in this progress report why such relaxation techniques are required or why an extra half-hour per session is needed to employ such techniques. Also, Dr. Rockman notes in this report that Ms. Li would be providing the recommended psychotherapy, which supports the respondent’s contention that the $100.00 per hour rate is more appropriate than the $149.61 psychologist rate proposed in the treatment plans.

18Accordingly, the applicant has not demonstrated that the unapproved portions of these psychological services treatment plans are reasonable and necessary.

Occupational Therapy Services OCF-18 Denied June 8, 2020

19I find that the applicant is not entitled to $599.26 ($2,639.91 less the amount approved) for occupational therapy services denied June 8, 2020 (issue #4), as she has not demonstrated this treatment plan to be reasonable and necessary.

20There is some discrepancy over this treatment plan. The CCRO dated December 20, 2021 noted this issue to concern an occupational therapy plan completed by Deena Rogozinsky, occupational therapist. The applicant’s arguments in submissions are also about occupational therapy services. This OCF-18 has not been submitted by the applicant.

21In its written submissions, the respondent claims that no OCF-18 for occupational therapy services was submitted in this amount on or around the date noted in the CCRO or in the applicant’s submissions. The respondent alleges that an OCF-18 for psychological services in this amount of $2,639.91 was submitted on May 27, 2020 and partially approved for $2,040.65, leaving $599.26 unapproved. It suggests that this is the actual issue in dispute, and provides this OCF-18 and the partial approval letter sent to the applicant dated June 8, 2020.

22As the applicant did not file reply submissions, she does not comment here.

23I accept the position of the respondent. The occupational therapy services treatment plan as listed in the CCRO and as detailed in the applicant’s submissions is not properly before the Tribunal. The applicant did not submit an OCF-18 for this issue. Her arguments are entirely on an occupational therapy services plan that seems to have been listed as an issue in dispute in error.

24It follows that the applicant is not entitled to the occupational therapy services treatment plan denied on June 8, 2020 as listed in the CCRO.

Occupational Therapy Services OCF-18 Denied May 26, 2020

25I find that the applicant is not entitled to $2,200.00 for occupational therapy services denied May 26, 2020 (issue #3), as she has not demonstrated this treatment plan to be reasonable and necessary.

26As above, there is some discrepancy regarding this treatment plan. In both the CCRO dated December 20, 2021 and in the submissions of the applicant, this issue is noted to involve a treatment plan for occupational therapy services completed by Ms. Rogozinsky. The applicant has not submitted the OCF-18.

27The respondent claims that it approved the only occupational therapy services assessment plan that was ever filed with the insurer, and provided this OCF-18 and the approval letter sent by Aviva to the applicant dated March 30, 2020 in submissions. The respondent further notes that an OCF-18 completed by Ms. Rogozinsky in the amount of $2,200.00 for a dietician assessment was denied on May 26, 2020, and suggests that this is the proper issue in dispute. It included this plan in submissions, along with the insurer’s denial letter.

28The applicant did not file a reply. The respondent’s assertions go unchallenged.

29I accept the position of the respondent. The occupational therapy services treatment plan as listed in the CCRO is not properly before the Tribunal. Even though the plan was completed by an occupational therapist in Ms. Rogozinsky, it was not for occupational therapy services. This plan is actually for a dietician assessment, which is clearly noted in the OCF-18 submitted by the respondent.

30In addition, there are significant issues beyond the misidentification of this treatment plan. The applicant focused solely on occupational therapy in her submissions. She noted insurer log notes that indicate she “needs OT treatment” and provided specifics of this treatment and the costs, without mention of the “dietician intervention” that is the actual sole purpose of this plan. To summarize, the applicant has not provided support that this treatment plan is reasonable and necessary because she provided an argument on a different plan altogether.

31As a result, the applicant is not entitled to the occupational therapy services/dietician assessment treatment plan denied on May 26, 2020.

ORDER

32I find that the applicant is not entitled to the plans in dispute, nor interest.

33The application is dismissed.