Citation: Light v. Aviva General Insurance, 2023 ONLAT 21-006707/AABS

Licence Appeal Tribunal File Number: 21-006707/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:

Susan Light

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Dino Ranchan Pius, Cousel

For the Respondent:

HEARD:

Yann Grand-Clement, Counsel

By Way of Written Submissions

1Susan Light, the applicant, was involved in an automobile accident on March 21, 2017, 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 following issues are to be decided:

i. Is the applicant entitled to $1,946.52 for cognitive training, proposed by Arvind Gupta, in a treatment plan (“OCF-18”) dated March 5, 2019?

ii. Is the applicant entitled to $2,359.17 for a driver reintegration assessment proposed by Dr. Langis, in OCF-18 dated January 28, 2019?

iii. Is the applicant entitled to $3,143.32 for psychological services proposed by Dr. Gladshteyn, in an OCF-18 dated May 31, 2019?

iv. Is the applicant entitled to $600.00 for chiropractic treatment proposed by Dr. Kellerstein, in an OCF-18 dated May 30, 2019?

v. Is the applicant entitled to payment of expenses submitted in the OCF-6s dated June 15, 2021, June 28, 2021, August 2, 2021, August 23, 2021, October 5, 2021 and March 29, 2022 (referred to as the “Expense Claim Forms”)?

vi. Is the applicant entitled to an award and interest because the respondent unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

i. The applicant is entitled to $1,946.52 for cognitive training.

ii. The applicant is not entitled to $2,359.17 for a driver reintegration assessment.

iii. The applicant is not entitled to $3,143.32 for psychological services.

iv. The applicant is not entitled to $600.00 chiropractic treatment.

v. The applicant is not entitled to payment of Expense Claim Forms.

vi. The applicant is entitled to interest.

vii. The applicant is not entitled to an award.

ANALYSIS

4On December March 21, 2017, the applicant’s vehicle was t-boned. The airbags did not deploy, and the applicant did not attend the hospital, nor receive medical treatment on the date of the accident.

Applicant’s Onus to Establish a Treatment Plan is Reasonable and Necessary

5To receive payment from an insurer for a medical benefit sought under sections 14 and 15 of the Schedule, an applicant must establish on a balance of probabilities that he has suffered an impairment from the accident and that the medical benefit is a reasonable and necessary expense as a result of the accident.

6There must be objective medical evidence demonstrating a causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.

7In demonstrating the reasonableness and necessity of a benefit sought, 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 the goals are reasonable.

THE DISPUTED TREATMENT PLANS

The applicant is entitled to $1,946.52 for Cognitive Training

8I find that the proposed functional cognitive training is reasonable and necessary.

9The treatment goals included in this plan are: to reduce pain, increase range of motion, help the applicant return to activities of normal living, and address the limitations outlined in the functional cognitive assessment. In the applicant’s submissions, she refers to the functional cognitive assessment, dated February 20, 2019, completed by Mr. Arvind Gupta, occupational therapist. The assessment completed was in-person was used to evaluate the applicant’s cognitive skills and therapeutic needs. The report provided that the applicant would benefit from a neurocognitive rehabilitation to treat complaints of decreased motivation, interest, initiative, and other cognitive functional limitations.

10The respondent submits that there is no medical evidence to demonstrate that the applicant is having cognitive difficulties requiring the proposed training. The respondent relies on the functional abilities’ evaluation of Dennis Polygenis, physiotherapist, on April 4, 2019, finding that the applicant was not impaired in most of her functioning.

11I am persuaded by the functional cognitive assessment and find that the treatment plan as proposed is reasonable and necessary to assist the applicant return to activities of normal living. As such I find that the applicant has led sufficient evidence that further treatment for her cognitive deficits is warranted. I find that the treatment plan is reasonable and necessary.

The applicant is not entitled to $2,359.17 for a driver reintegration assessment

12I find that the proposed driver reintegration assessment is not reasonable and necessary.

13The purpose of the assessment is to have a specialist examine the applicant to help formulate a plan for recovery, and implement a proper treatment plan, including in-vehicle treatment.

14The applicant relies on the Psychological Report of Vera Sukoveyeva, psychotherapist, under the supervision of Dr. Ilya Gladshteyn, psychologist, to support the driver reintegration assessment. Ms. Sukoveyeva diagnosed the applicant with specific phobia, situational type (driving).

15The respondent relies on the Psychology Assessment Report of Dr. Rod Day, psychologist, dated May 17, 2019. Dr. Day opined that the applicant did not meet the criteria for a psychological diagnosis. This was also supported by the clinical notes and records (“CNRs”) of Dr. Sukana Murtada Sayed, family physician, that revealed no complaints of driving anxiety by the applicant.

16The respondent also raises two concerns with the proposed treatment plan, on which I agree. The first issue is with the two different rates charged for a psychologist in the OCF-18. The OCF-18 is proposing treatment from a psychologist at two different rates: $299.22 an hour at line 3, and $373.03 an hour at line 6. The respondent asserts that both of these rates are over the Professional Service Guideline (“PSG”) rate that sets the maximum hourly rate for a psychologist at $149.61 an hour. I agree that these rates are above PSG and are not reasonable. Second, the respondent submits that the costs allocated for transportation to treatment are contrary to the transportation provisions of the Schedule. Again, I agree finding these costs to be unreasonable.

17Further, and despite the cost’s issues outlined above, on review of the medical evidence, I prefer the medical evidence of Dr. Day, a practicing psychologist, over Ms. Sukoveyeva, a psychotherapist. I am persuaded by Dr. Day’s opinion that a driver rehabilitation program was not required as the applicant had already returned to driving. Accordingly, I find that the treatment plan is not reasonable and necessary.

The applicant is not entitled to $3,143.32 for psychological services

18I find that the proposed psychological services are not reasonable and necessary.

19The proposed treatment plan is to help the applicant return to pre-accident psychological functioning.

20The applicant relies on the Psychological Report of Ms. Sukoveyeva and Dr. Gladshteyn that diagnosed the applicant with adjustment disorder with anxiety, and specific phobia, situational type (driving). The applicant underwent 12 sessions of psychotherapy with Ms. Sukoveyeva, who found that 10 additional sessions were required. The applicant also relies on the Psychological Report of Dr. Jesus Saplala, psychologist, dated May 17, 2018, that diagnosed the applicant with post-traumatic stress disorder. I note that this report was completed almost a year before the treatment plan was submitted.

21The respondent submits that there is no medical evidence in the CNRs of Dr. Sayed that the applicant suffers from an accident-related psychological impairment. The applicant was diagnosed with depression by Dr. Sayed, however the psychological issues were deemed to be tied to the passing of her partner and not to the accident. The respondent also relies on the Psychology Assessment Report of Dr. Day who opined that the applicant no longer suffered from an accident-related psychological impairment and provided that the treatment plan was not reasonable and necessary. The respondent takes issue with the applicant relying on the Psychological Report of Ms. Sukoveyeva under the supervision of Dr. Gladshteyn, to justify the very treatment plan submitted by Dr. Gladshteyn.

22I give more weight to the report of Dr. Day than that of Dr. Saplala, as Dr. Saplala’s report was submitted one year before the treatment plan, while Dr. Day’s report is contemporaneous with the treatment plan before the Tribunal. Furthermore, as mentioned above, I again prefer the medical evidence of Dr. Day, a practicing psychologist, over Ms. Sukoveyeva, a psychotherapist. As a result, I find that the applicant has failed to establish that this treatment plan is reasonable and necessary.

The applicant is not entitled to $600.00 for Chiropractic Treatment

23I find that the proposed psychological services are not reasonable and necessary.

24The goals of the proposed treatment plan are to reduce pain and help the applicant return to activities of normal living.

25The applicant relies on the CNRs of Dr. Sayad to establish that the treatment plan is reasonable and necessary. The applicant highlights certain notations in the CNRs, including x-ray results of her cervical spine, which demonstrated cervical degenerative disease. As a result of this diagnosis Dr. Sayad recommended chiropractic treatment, and continued physiotherapy.

26In response, the respondent points to the CNRs of Dr. Sayad that state the applicant suffered uncomplicated soft tissue injuries/whiplash and the notations which reveal that the subject accident did not have an impact on the applicant’s degeneration in her cervical spine, nor was it the source of her cervical degenerative disc disease.

27The respondent also relies on the orthopaedic assessment of Dr. Fathi Abuzgaya, orthopaedic surgeon, where the applicant was diagnosed with sprains and strains. The section 44 Multidisciplinary Assessment Report dated May 17, 2019, of Dr. Paul Tepperman, occupational health physician, opined that there was no evidence of musculoskeletal or a neurological impairment, finding that the treatment plan was not reasonable and necessary as the applicant’s injuries were resolved.

28I find that the CNRs of Dr. Sayed, as well as the opinions of Dr. Abuzgaya and Dr. Tepperman indicate that the applicant suffered uncomplicated soft tissue injuries as a result of the accident. Specifically, Dr. Sayad’s CNRs provide that the whiplash the applicant suffered in the accident has resolved. Lastly, I disagree with the applicant’s characterisation that her degenerative disc disease was caused by or affected by the accident. I find that the applicant has failed to establish that this treatment plan is reasonable and necessary.

The Applicant is not entitled to Expense Claim Forms

29As part of her submissions, the applicant brings forward various OCF-6 Expense Claim Forms. The applicant submits that after the respondent denied the Chiropractic Treatment plan in dispute, she paid out of pocket for treatment. The respondent argues that the Chiropractic Treatment was not reasonable and necessary, and it follows that the associated expense is not reasonable and necessary.

30I agree with the respondent. At paragraph 29 of this decision, I found that the Chiropractic Treatment plan was not reasonable and necessary, so it follows that the associated expenses and invoices incurred following the respondent’s denial do not alter my determination and are therefore not reasonable and necessary.

Interest

31The applicant submits that she is entitled to interest on all benefits in dispute.

32After considering the submissions of the parties, based on a balance of probabilities, I find that interest is payable on the overdue claims in dispute, namely the $1,946.52 for Cognitive Training, pursuant to s. 51 of the Schedule.

Award

33Section 10 of Reg. 664 provides that an award of up to 50% of the accident benefit and interest owed may be granted it the respondent unreasonably withheld or delayed payments. Based on the evidence before me I do not find that the respondent’s conduct was excessive or amounted to egregious conduct to attract a section 10 award.

ORDER

34I find that: