Licence Appeal Tribunal File Number: 22-006760/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:
Olena Danilova
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Claudia Kwok, Counsel
For the Respondent: Thulasi Kandiah, Counsel
HEARD: In Writing
OVERVIEW
1Olena Danilova, the applicant, was involved in an automobile accident on January 30, 2021, 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 psychological services in the amount of $1,047.24 ($4,140.28 less $3,093.04) recommended by Anna Kozina, psychologist, in a treatment plan dated December 6, 2021?
ii. Is the applicant entitled to driving rehabilitation, in the amount of $2,580.56 ($8,572.04 less $5,991.48), recommended by Erin Langis, psychologist, in a treatment plan dated March 9, 2022?
iii. Is the applicant entitled to an orthopaedic assessment, in the amount of $2,200.00, recommended by Dr. Tajedin Getahun, physician in a treatment plan dated May 25, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled:
i. psychological treatment in the amount of $1,047.24;
ii. driving rehabilitation in the amount of $2,580.56;
iii. an orthopaedic assessment in the amount of $2,200.00; or
iv. interest.
ANALYSIS
Are the treatment plans reasonable and necessary?
4Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
5The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plans are reasonable and necessary on a balance of probabilities.
Psychological treatment in the balance amount of $1,047.24 in a treatment plan dated December 6, 2021
6I find that the applicant is not entitled to the remaining balance of psychological treatment in the amount of $1,047.24 in a treatment plan dated December 6, 2021.
7The treatment plan was submitted in the amount of $4,140.28. The respondent partially approved this in the amount of $3,093.04, covering the psychotherapy sessions in full, as well as the cost of a treatment manual and completion of the treatment plan. The respondent denied coverage of testing and scoring, treatment planning, and the discharge progress report.
8The goals of the treatment plan are to reduce pain, return the applicant to pre-accident level of psychological functioning and activities of normal living.
9The applicant submits the remaining balance of the treatment plan is reasonable and necessary. The applicant submits that the denied coverage is made up of items that are part of the treatment plan and beyond what is included in the $200.00 allotted for planning, preparation, brokerage, which would occur prior to the commencement of treatment.
10The respondent submits that the applicant failed to make compelling submissions or provide evidence on why the denied services are reasonable and necessary. The respondent submits that the denied amount of $1,047.24 pertains to the testing and scoring, treatment planning, and discharge progress report.
11I agree with the respondent. The applicant does not make persuasive submissions with respect to the denied portions, including testing and scoring, treatment planning, and discharge/progress report, of the treatment plan for psychological services.
12Accordingly, I find that the applicant has not met her onus to demonstrate that the denied portion of the treatment plan is reasonable and necessary.
Driving rehabilitation in the balance amount of the amount of $2,580.56 in a treatment plan dated March 9, 2022
13I find that the applicant is not entitled to the remaining balance of a treatment plan for driving rehabilitation in the amount of $2,580.56 dated March 9, 2022.
14The treatment plan was submitted in the amount of $8,572.04. the respondent partially approved this in the amount of $5,991.48, covering the 15 driving sessions at an hourly rate of $58.19 for non-regulated providers, 5 testing and scoring (not all 15) sessions, 15 psychotherapy sessions, a progress report, completion of the treatment plan, and travel time. The respondent denied coverage of the hourly rate of the service provider, any goods/services relating to planning/preparation/brokerage, additional fees in relations to testing and scoring of the treatment plan.
15The goals of the treatment plan are to reduce pain and return the applicant to a pre-accident level of psychological functioning and return to activities of normal living.
16The applicant submits that the remaining balance of the driving rehabilitation plan is reasonable and necessary. The applicant relies on the medical of evidence of Dr. Kerry Lawson, clinical psychologist and Ms. Kozina diagnose the applicant with mixed anxiety and depression, moderate, somatic symptom disorder and a driving phobia. The applicant provides further submissions on the applicant’s need for 15 in-vehicle sessions and 15-sessions of accompanied psychotherapy. I note that the respondent has provided funding for driving and psychotherapy sessions.
17The respondent submits that the applicant failed to make compelling submissions or provide evidence on why the denied services are reasonable and necessary. The respondent submits that the applicant’s evidence is the goal of the treatment plan, and her psychological symptoms to support her claim, while the respondent goes line by line for each item that was denied.
18I am persuaded by the submissions of the respondent. The applicant relies on the psychological symptoms and diagnosis opined by Dr. Lawson and Ms. Kozina, this is despite the respondent already funding the driving sessions and psychotherapy sessions. The applicant does not make persuasive submissions with respect to the denied portions and did not provide compelling evidence to demonstrate the remaining balance of the treatment plan is reasonable and necessary.
19Accordingly, I find that the applicant has not met her onus to demonstrate that the denied portion of the treatment plan is reasonable and necessary.
Orthopaedic assessment, in the amount of $2,200.00 in a treatment plan dated May 25, 2022
20I find that the applicant is not entitled to the remaining balance of a treatment plan for driving rehabilitation in the amount of $2,200.00 dated May 25, 2022.
21The goals of the treatment plan are to reduce pain, increase strength and range of motion to allow the applicant to return to activities of normal living.
22The applicant relies on the Disability Certificate (“OCF-3”) dated February 26, 2021, completed by Mr. Ushma Patel, chiropractor, and the treatment plan itself. In reviewing the OCF-3, I find that the physical injuries listed are soft tissue injuries. This is consistent with the clinical notes and records (“CNRs”) of Dr. Nuica, family physician, who diagnosed the applicant with whiplash and soft tissue injuries. The applicant takes issue that the respondent denied the treatment plan without scheduling an insurer’s examination to assess the applicant.
23The respondent relies on the section 44 Multidisciplinary Assessment Report dated June 3, 2021, by Dr. Lawson, Ms. Deepali Dhawan, occupational therapist, and Dr. Sabrina Ming-Wai Tu, physician, which was completed to address the non-earner benefits no longer in dispute. Dr. Tu concluded that the applicant had sprain and strain injuries as a result of the accident. Furthermore, the respondent submits that because the applicant did not put forward medical evidence of injuries beyond soft tissue, it had no reason to assess her pursuant to section 44.
24I agree with the respondent. I find that the treatment plan is inconsistent with the medical evidence. Notably, the conclusion of Dr. Tu, Dr. Nuica and Mr. Patel that diagnose the applicant with soft tissue injuries. Furthermore, Dr. Nuica did not refer the applicant to an orthopedic surgeon or other medical specialist nor recommend an orthopedic assessment. The applicant does not make persuasive submissions with respect to the need of an orthopaedic assessment.
25Accordingly, I find that the applicant has not met her onus to demonstrate that the orthopaedic assessment is reasonable and necessary.
INTEREST
26Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.
ORDER
27The application is dismissed, and I find that the applicant is not entitled to:
i. psychological treatment in the amount of $1,047.24;
ii. driving rehabilitation in the amount of $2,580.56;
iii. an orthopaedic assessment in the amount of $2,200.00; or
iv. interest.
Released: August 21, 2024
Monica Ciriello
Vice-Chair