Sahba Boroojerdi v. Aviva Insurance Company of Canada, 2024 CanLII 126338

Citation: Boroojerdi v. Aviva Insurance Company of Canada, 2024 ONLAT 23-001515/AABS

Licence Appeal Tribunal File Number: 23-001515/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:

Sahba Boroojerdi

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Daniella Cohen, Paralegal

For the Respondent:

Jessica N. Telfer, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sahba Boroojerdi, the applicant, was involved in an automobile accident on July 23, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to the treatment plans/OCF-18s (“plans”) proposed by Health-Pro Wellness, as follows:

i. $3,421.76 for physiotherapy services, in a plan submitted January 23, 2021;

ii. $1,920.55 ($4,663.92 less $2,743.37) for psychological services, in a plan submitted April 2, 2022, and denied April 4, 2022; and

iii. $4,463.97 ($6,060.47 less $1,596.50) for psychological services, in a plan submitted April 19, 2023, and denied June 6, 2023?

2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3Based on the totality of the evidence before me, I find:

1. The applicant is not entitled to any of the treatment plans in dispute.

2. As there are no overdue benefits payable, the applicant is not entitled to interest.

3. The application is dismissed.

ANALYSIS / REASONING

Is the Applicant entitled to $3,421.76 for physiotherapy services, in a plan submitted January 23, 2021

4In Scarlett v. Belair Insurance, the Divisional Court found at paragraph 24 that the onus of establishing entitlement beyond the Guideline limits rests with the claimant. The onus is on the applicant, to prove, each treatment plan submitted was reasonable and necessary at the time it was submitted and with reference to contemporaneous medical evidence.

5To 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 because 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.

6I find the applicant has not demonstrated that the OCF-18 is reasonable and necessary. I agree with the applicant ‘s submission that her physical injuries are a legitimate goal for treatment. However, I find there are no contemporaneous medical evidence of the physical injuries in the clinical notes and assessments of Dr. Gholami. He did not include actual diagnosis pertaining to any of the applicant’s physical complaints. The reports of Dr. Fazil, Dr. Langis, Dr. Tarulli and Mr. Findlay’s report stated that the applicant was unlikely to find relief from further facility-based treatment.

7The respondent submits that there is insufficient evidence linking the applicant’s post-accident physical complaints, particularly her elbow and knee pain, to the collision. Records from relevant specialists, including orthopedic surgeon Dr. Nourhosseini and psychologist Dr. Langis, are either incomplete or unavailable, raising questions about whether the applicant followed up on referrals. Independent evaluations, such as that by occupational therapist, Mr. Ronald Finlay, indicate that the applicant’s functional range of motion was largely intact except for mild knee limitations.

8The applicant was seen by Dr. Fung where he concluded that her physical injuries were predominantly minor in nature, and that further facility treatments for soft tissue injuries would not be reasonable and necessary.

9I find on a balance of probabilities, the treatment not reasonable and necessary.

Is the applicate entitled to $1,920.55 ($4,663.92 less $2,743.37) for psychological services, in a plan submitted April 2, 2022, and denied April 4, 2022

10To 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 because 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.

11I find the applicant has not demonstrated that the OCF-18 is reasonable and necessary. I agree with the applicant ‘s submission that her physical injuries are a legitimate goal for treatment. The insurer has partially paid these benefits of $2,743.37 in relation to this treatment plan, representing fourteen 1–hour sessions, recommended by her family doctor. The demand letter by Aviva wanted an explanation for the change from 1-hour sessions to 1.5-hour sessions submitted by the applicant. The applicant did not respond to the insurer’s request for clarification.

12I find that the above is incomplete by the applicant as she has not replied to the insurer about the additional time in the sessions that are required for further treatment. Also, there is no contemporaneous medical evidence of the psychological injuries in the clinical notes and records of Dr Langis that supports further treatment would be beneficial at a facility-based treatment. Also Dr. Langis did not physically examine the applicant. Dr. Langis only signed as a supervisor for the psychological evaluation assessment. This examination was done by Alireza Jamshidi, psychotherapist.

Is the applicant entitled to $4,463.97 ($6,060.47 less $1,596.50) for psychological services, in a plan submitted April 19, 2023, and denied June 6, 2023

13To 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 because 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.

14The OCF-18 in the amount of $4,663.92 representing 14 one-hour sessions as recommended by Alireza Jamshidi, psychotherapist. The insurer partly approved $1,596.50 representing 14 one-hour sessions at the rate of $99.75 per hour, instead of the $149.61 hourly rate proposed in the OCF-18. The insurer advised that the rate of $99.75 was payable to the applicant, however the insurer was unable to pay the rate applicable to psychologists.

15I find I agree with the respondent that these denials rests on the fact that the OCF-18 propose treatment for 1.5-hour sessions, and this latter OCF-18 proposes a rate of $149.61 payable for treatment provided by a psychotherapist. The OCF-18s themselves suggest 1.5 sessions but are similarly silent on why the extra half hour would be reasonably required.

16I find also that the applicant failed to provide any additional information or qualifications for Alireza Jamshidi, if he is a specialist in cognitive behavioural therapy, how long has he/she provided such services, or whether he/she has had any additional training in cognitive behavioural related areas. Also, I find there is no evidence of Dr. Langis’s involvement in the provision of treatment beyond the completion of the report.

17I find that there is no explanation for increased length of sessions and considering the demand by the insurer as to the reason for the additional time has not been answered by the applicate. Therefore, I find the OCF-18s not reasonable or necessary.

No interest is payable.

18As no benefits are overdue, no interest is payable.

ORDER

19As a result of the above and on a balance of probabilities, I find that:

1. The applicant is not entitled to the disputed treatment plans.

2. As there are no overdue benefit payments, the applicant is not entitled to interest.

3. The application is dismissed.