Moran v. Aviva General Insurance Company, 2024 CanLII 83749

Citation: Moran v. Aviva General Insurance Company, 2024 ONLAT 22-005860/AABS - A

Licence Appeal Tribunal File Number: 22-005860/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:

Miguel Moran

Applicant

and

Aviva General Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Rajiv Kapoor, Counsel

For the Respondent: Kathleen Mertes, Counsel

HEARD: In Writing

OVERVIEW

1Mr. Miguel Moran (the “Applicant”) was involved in an automobile accident on May 24, 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 Company, 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 $548.46 ($1,845.71 less $1,297.25 approved) for psychological services, proposed by Novo Medical Services in an OCF-18 submitted October 13, 2021 and denied on December 13, 2021?

ii. Is the Applicant entitled to $11,807.44 for chronic pain management program, proposed by Novo Medical Services in an OCF-18 submitted on May 11, 2022 and denied on May 19, 2022?

iii. Is the Applicant entitled to $2,510.00 for other goods and services (orthopaedic mattress), proposed by Fady Akladios, in an OCF-18 submitted on June 9, 2020?

iv. Is the Applicant entitled to $598.91 ($1,148.05 less $549.14 approved) relating to expenses incurred for psychological counselling, proposed by Novo Medical Services in an OCF-21 submitted on February 27, and denied on April 18, 2022?

v. Is the Respondent liable to pay an award under s. 10 of O.Reg. 664 because it unreasonably withheld or delayed payment of benefits?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is not entitled $548.46 for psychological services.

ii. The applicant is not entitled to $11,807.44 for chronic pain management program.

iii. The applicant is not entitled to $2,510.00 for other goods and services (orthopaedic mattress).

iv. he applicant is not entitled to $598.91 relating to expenses incurred for psychological counselling.

v. As no benefit is overdue nor have I found any payment of a benefit to be unreasonably withheld or delayed, the applicant is not entitled to interest or an award.

vi. The application is dismissed.

ANALYSIS

4Sections 15 and 16 of the Schedule state that the insurer shall pay for all medical and rehabilitation expenses incurred by or on behalf of the insured, that are reasonable and necessary as a result of the accident. The burden of proof lies with the applicant on a balance of probabilities. The applicant should identify the goals of the proposed treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving those goals are reasonable.

Psychological Services

5The applicant submitted an OCF-18 in the amount of $1,845.17 for psychological services, provided by Novo Medical Services, submitted on October 13, 2021 and denied on December 13, 2021. The hourly rate for the service was $149.61.

6The respondent partially approved this OCF-18 via an Explanation of Benefits (EOB) on December 13, 2021. The partial approval by the respondent amended the hourly rate of the service provider to $99.75.

7The difference between the submitted and paid hourly rate left an amount of $548.46.

8The respondent argues that the rate of $99.75 is the appropriate amount due to the provider of the service being a psychotherapist and not a psychologist. This reasoning was provided in the EOB to the applicant, and the offer to discuss the discrepancy was provided.

9The applicant argues that since psychotherapists and psychologists provide the same service, they should be paid the same rate. The applicant has also provided previous cases decided by this Tribunal that found that a psychotherapist can be paid at the same rate.

10I agree with the respondent’s argument that they were clear about the amount that they would pay based on the provider of that service and that they invited the applicant to discuss the rate if they had a dispute with it. I see no evidence that the applicant disputed the respondent’s amount.

11The Professional Services Guideline (Superintendent’s Guideline 03/14) incorporated into the Schedule states that psychologists are payable at an hourly rate of $149.61; however, this Guideline states that for service providers not listed in it, they would be payable at a rate to be determined by the parties involved. Psychotherapists are not listed in this Guideline.

12I am unpersuaded by the applicant’s argument in review of the Tribunal cases. In those cases, much more documentation on the service provider was submitted, and in addition, a stronger relationship between the psychotherapist and the supervising psychologist was established. In addition, the ability to have a number of other psychotherapists provide the service if the submitted psychotherapist wasn’t available, I find, undercuts the applicant’s argument regarding the psychotherapist’s qualifications.

13The applicant is not owed $548.46 for the difference in hourly rates.

Chronic Pain Management

14The applicant argues he is entitled to $11,807.44 for a chronic pain management program, proposed by Novo Medical Services in an OCF-18 dated May 11, 2022.

15The respondent argues that the chronic pain management treatment program was denied as it appeared to be a duplication of services the applicant was already receiving and requested CNRs from the original clinic providing the pain management treatment to reconsider the denial.

16The respondent also argues that the OCF-18 in dispute had proposed a treatment program with an estimated duration of 12 weeks. Given the timing of the submission, on May 11, 2022, the applicant would not have been able to incur the treatment plan prior to the expiry of the 5-year maximum period of entitlement to payment of incurred medical and rehabilitation expenses on May 24, 2022, as outlined in s. 20 of the Schedule.

17This matter has been heard by this tribunal previously, Moran v. Aviva, 2021 CanLII 21433, with Adjudicator Lake.

18I agree with the respondent, that it was appropriate to ask for the CNRs from the original clinic providing the same treatment to help reconsider the denial.

19I agree with Adjudicator Lake in Moran v. Aviva, 2021 CanLII 21433 at para. 11, that the applicant has failed to prove on the balance of probabilities that his physical impairments are directly caused by the first accident.

20The OCF-18 was not submitted for consideration until May 11, 2022. As this OCF-18 treatment plan had a duration of 12 weeks, the applicant would be unable to complete the treatment plan prior to the expiry of the 5-year maximum period of entitlement to payment of incurred medical and rehabilitation expenses on May 24, 2022, as outlined in s. 20 of the Schedule.

21The applicant is not entitled to the $11,807.44 for chronic pain management program, proposed by Novo Medical Services in an OCF-18 dated May 11, 2022.

Orthopaedic Mattress

22The applicant argues they are entitled to $2,510.00 for other goods and services (orthopaedic mattress), proposed by Fady Akladios, in an OCF-18 submitted on June 9, 2020. He also argues that the EOB denial of the mattress was a violation of s. 38(8) thorough (11) of the Schedule.

23The respondent argues that the EOB denial was in accordance with s. 38(8) of the Schedule, based on the inclusion of the wording “and all other reasons why the insurer considers….not to be reasonable”. In addition, the respondent argues that according to s. 38 (2) of the Schedule, they are not liable to pay for an expense or benefit incurred before the applicant submits a treatment or assessment plan.

24Also, the respondent argues that the Applicant is barred from disputing this particular issue per the doctrine of res judicata as he has previously disputed the same issue via a prior Tribunal application which proceeded to a written hearing.

25The doctrine of res judicata prevents a party from relitigating an issue that has already been finally decided, and is well-established (see, e.g., Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44). To apply res judicata, four pre-conditions must be established:

i. The parties must be the same in both actions;

ii. The prior claim must be within the jurisdiction of the Tribunal or Court;

iii. The prior adjudication must have been on the merits; and

iv. The prior decision must have been a final judgement.

26I agree with the respondent that this issue meets all four conditions of res judicata.

27In Moran v Aviva 19-008529/AABS, (which is found at 2021 CanLII 21433), Adjudicator Lake decided a dispute between the same parties, involving the same car accident, the same claim for an orthopedic mattress (albeit a different-dated treatment plan) and, at para. 39, found that:

“Given my findings on causation, I further find that Mr. Moran is not entitled to the unapproved portion of the November 9, 2018 OCF-18 for various physical treatment modalities or to the orthopaedic mattress as these benefits pertain to Mr. Moran’s physical impairments which I have found were not caused by the first accident.”

28The Supreme Court of Canada in Toronto v. CUPE Local 79, 2003 SCC 63 at para. 52, explained that res judicata may not apply where (1) the first proceeding was tainted by fraud or dishonesty, (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original result, or (3) fairness dictates that the original result should not be binding in the new context (e.g., a subsequent hearing).

29I agree with Adjudicator Lake. I have nothing in the submitted evidence that would lead me to disagree with her findings on the issue. By using the standard quoted above, I do not find that the first proceeding was tainted by fraud or dishonesty. Nor do I find any fresh, or new evidence that would change the original result. Finally, there is no issue of fairness when applied to this instance as there is no new context.

30The applicant is not entitled to $2,510.00 for other goods and services (orthopaedic mattress).

Psychological Counselling

31The applicant argues they are entitled to $598.91 ($1,148.05 less $549.14 approved) relating to expenses incurred for psychological counselling, proposed by Novo Medical Services in an OCF-21 submitted on February 27, 2022, and denied on April 18, 2022.

32The respondent argues that a decision on this issue was already heard by Adjudicator Lake in Moran v. Aviva, who found that the payment of $58.19 was correct.

33I have not been directed to any evidence that would lead me to disagree with Adjudicator Lake’s decision that $58.19 was the correct hourly rate. As per The Supreme Court of Canada in Toronto v. CUPE Local 79, 2003 SCC 63 at para. 52, I do not find that the first proceeding was tainted by fraud or dishonesty. Nor do I find any fresh, or new evidence that would change the original result. Finally, there is no issue of fairness when applied to this instance as there is no new context.

34The applicant is not entitled to $598.91 relating to expenses incurred for psychological counselling.

Award and Interest

35Section 51 of the Schedule provides that interest is payable on overdue benefits. As I have found that the applicant has not met his burden of proving entitlement to any of the benefits in dispute, it follows that no interest is owing. Similarly, s. 10 of O. Reg. 664 states that, if the Tribunal finds that the respondent unreasonably withheld or delayed payment of benefits, then it may award the applicant up to 50% of the amounts owing including interest, plus interest.

Conclusion

36I find that the applicant has not met his burden of proving that he is entitled to any of the benefits claimed in the issues in dispute. As no benefits are overdue and none were unreasonably withheld or delayed by the respondent, neither interest nor an award are payable.

ORDER

37I find that:

i. The applicant is not owed any benefits for the issues in dispute.

ii. As no benefits are owing, no interest is payable.

iii. As no benefits were unreasonably withheld or delayed, no award is payable.

iv. The application is dismissed.