Licence Appeal Tribunal File Number: 22-008368/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:
Daniel Torres
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Leo Demarce
APPEARANCES:
For the Applicant:
Neisha Moses, Paralegal
For the Respondent:
Aleah Thomas, Counsel
HEARD by way of written submissions
OVERVIEW
1Daniel Torres, the applicant, was involved in an automobile accident on May 30, 2019, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Prime Healthcare Inc. in a treatment plan dated May 6, 2022?
ii. Is the applicant entitled to $1,845.10 ($3,641.10 less approved amount of $1,796.00) for psychological services proposed by Prime Healthcare Inc. in a treatment plan dated October 31, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew the following issue prior to submitting their written submissions:
i. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Prime Healthcare Inc. in a treatment plan dated May 24, 2022?
RESULT
4The applicant is not entitled to any of the treatment plans in dispute. As a result, the applicant is also not entitled to an award or interest and the application is dismissed.
PROCEDURAL ISSUE
Late filing of the respondent’s submissions
5The applicant noted in their reply submissions that the respondent was late in filing its written submissions which only afforded the applicant with three days to prepare their reply submissions. The applicant requested that the Tribunal dispose of the respondent’s written submissions in their entirety.
6I find that while the respondent had a responsibility to be on-time with its submissions, that it did not adversely affect the applicant’s ability to provide a reply because the applicant filed their submissions on time.
7also find that if the applicant required additional time to submit their reply, they could have submitted a request to the Tribunal for such relief, but no such request was made. As a result, the applicant didn’t act to mitigate their time deficiency, rather they took it as an opportunity to argue that the respondent’s written submissions be disposed of. To have the respondents’ submissions be disposed of would be prejudicial to the respondent. The applicant had time to prepare a response, and if they were unable, the applicant could have made a request to the Tribunal for more time. For these reasons, the applicant’s request to not consider the respondent’s submissions due to being late filed is denied.
ANALYSIS
The applicant has not been removed from the Minor Injury Guideline
8It is noted that the application to the LAT from the applicant notes that the Minor Injury Guideline (“MIG”) is in dispute. However, the Case Conference Report and Order (“CCRO”) does not identify the MIG as an issue in dispute. I did not find any evidence presented to me that states that the applicant was removed from the MIG.
9As I reviewed the issues in dispute, I took into consideration the applicant’s current status relating to the MIG and noted that if the treatment plan in dispute was reasonable and necessary and required the applicant to be removed from the MIG, then I would include that in my order.
The applicant is not entitled to the proposed chronic pain assessment
10I find that the applicant has not provided sufficient evidence to prove on a balance of probabilities that the chronic pain assessment is reasonable and necessary.
11The applicant argues that Dr. Agbayani reported that the applicant exhibited symptoms of chronic pain, and that his main complaints during follow-ups at Health-Pro Wellness were pain in the neck and lower back. The applicant also claims that he has done everything he can to seek out self-treatment such as chiropractic and physiotherapy.
12The respondent makes the following arguments as to why the assessment is not reasonable or necessary:
i. The applicant was referred to a pain specialist through his family doctor and as a result the proposed chronic pain assessment constitutes a duplication of services. If there was an OHIP funded chronic pain assessment, it was not put into evidence;
ii. There is an issue of causation in that the applicant has suffered a fall after the accident, after which he complained of knee and back pain; and
iii. The applicant did not point to evidence of a chronic pain diagnosis from a qualified chronic pain specialist, nor did he point to evidence that he exhibits at lease three of the six criteria described in the American Medical Association (“AMA”) Guides as adopted by the Tribunal when making a finding of chronic pain in lieu of a formal diagnosis.
13The respondent argues that the applicant’s submissions do not address the six criteria described in the AMA Guides for evaluating chronic pain claims (see, for example, the Tribunal’s analysis in 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT)). The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, include anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
14I find that the applicant did not point to sufficient evidence that would prove on a balance of probabilities at lease three of the six AMA Guides criteria have been met.
15I find that the applicant did not point to evidence that the chronic pain assessment would be reasonable and necessary, which is their burden. I am most persuaded by the argument that the applicant had access to an OHIP funded chronic pain assessment because this would have provided the applicant the evidence necessary to obtain a chronic pain diagnosis. …..
16As a result, I find that the chronic pain assessment is not reasonable or necessary and, therefore, the applicant is not entitled to the chronic pain assessment dated May 6, 2022.
The applicant is not entitled to the denied portion of the treatment plan for psychological services
17I find that the applicant is not entitled to the denied portion of the treatment plan for psychological services dated October 31, 2022.
18The treatment plan for psychological services dated October 31, 2022 sought the following proposed goods and services totalling $3,641.10:
i. 14 hours of psychotherapy at $149.61 per hour for a total of $2,094.54;
ii. A Progress report for $149.61
iii. Completion of an OCF-18 for $200.00
iv. A Testing and Scoring report for $149.61
v. 14 half hour sessions for treatment planning at $149.61 per hour for a total of $1,047.34
19The respondent approved the following portions of the treatment plan for a total of $1,796.00:
i. 14 hours of psychotherapy at $99.75 per hour for a total of $1,396.50
ii. A Progress report for $99.75
iii. A Testing and Scoring report for $99.75
iv. Completion of OCF-18 for $200.00.
20The respondent denied the rate of $149.61 per hour in favour of $99.75 per hour for the psychotherapy sessions, progress report, and testing and scoring as it was not performed by a psychologist in accordance with the Guideline rate. The respondent also denied the treatment and planning sessions of 14 half hour sessions at the rate of $149.61 per hour ($74.81 per half hour) as they were deemed not necessary. The total denied amount is $1,845.10.
21The applicant did not address or provide any reasons in his written submissions that the denied portion of this treatment plan be approved, other than to simply request that the Tribunal order to have the denied portion of $1,845.10 be paid by the respondent.
22As the applicant did not provide any meaningful submissions regarding this treatment plan, I find that the applicant has failed to prove on a balance of probabilities that the unapproved portions of the treatment plan dated October 31, 2022 are reasonable and necessary. The applicant is therefore not entitled to the unapproved amount.
Interest
23As there are no overdue benefits pursuant to s. 51 of the Schedule there is no interest payable.
Award
24The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that since there are not benefits due then there is no finding for an award.
ORDER
25The applicant is not entitled to any of the treatment plans in dispute. As a result, the applicant is also not entitled to an award or interest and the application is dismissed.
Released: November 14, 2024
Leo Demarce
Adjudicator