Licence Appeal Tribunal File Number: 23-005811/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:
Breea Carvery
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
SUBMISSIONS BY:
For the Applicant:
Maka Metreveli, Paralegal
For the Respondent:
Ilya Artemyev, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Breea Carvery, the applicant, was involved in an automobile accident on May 12, 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 General Insurance, 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 $1,968.52 for physiotherapy services proposed by 101 Physiotherapy Services, in a treatment plan (“OCF-18”) submitted March 16, 2022?
ii. Is the applicant entitled to $2,386.28 for physiotherapy services proposed by 101 Physiotherapy Services, in an OCF-18 submitted June 22, 2022?
iii. Is the applicant entitled to $1,720.36 ($3,566.29 less $1,845.93) for psychological services proposed by HM Medical Network Limited, in an OCF-18 submitted July 25, 2022?
iv. Is the applicant entitled to $1,047.11 ($3,566.29 less $2,519.18) for psychological services proposed by HM Medical Network Limited, in an OCF-18 submitted December 5, 2022?
v. Is the applicant entitled to $3,191.45 ($6,708.17 less $3,516.72) for psychological services proposed by HM Medical Network Limited, in an OCF-18 submitted December 19, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the proposed treatment plans.
4The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
The applicant is not entitled to physiotherapy services
5I find that the applicant has not proven, on a balance of probabilities, that the physiotherapy services are reasonable and necessary.
6To 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 as a result 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.
7The applicant addressed her claim for these treatment plans together in her submissions, and relied upon the same evidence and arguments to establish that these treatment plans are reasonable and necessary.
8The OCF-18s for physiotherapy services completed by Bill Nikols, chiropractor, dated March 16, 2022, and June 22, 2022, sought funding for physical rehabilitation, massage therapy, reassessment, acupuncture, and transportation. The OCF-18 identified treatment goals of pain reduction, increased range of motion, increased in strength, and a return to activities of normal living.
9The applicant submits that the pain that she experienced has caused her great detriment particularly to her sleep and that the proposed treatment plans are the sole means of relieving pain. The applicant further submits that the treatment plans are “irrevocably necessary and reasonable” and would succeed in reducing pain and a return to her regular life activities and lifestyle.
10The respondent submits that the proposed treatment plans were denied based on the opinion of s. 44 physician assessor Dr. Todd Levy in his report dated July 19, 2022, and addendum dated November 14, 2022, wherein Dr. Levy opined the applicant has reached maximum medical recovery.
11The applicant bears the onus of establishing that the subject treatment plans are reasonable and necessary, and I find that the applicant has not put forward compelling evidence that would substantiate the need for the proposed physiotherapy treatment in 2022. While I recognize the applicant’s intermittent pain related complaints to family physician, Dr. Donna Edwards, I am not pointed to any further CNR of Dr. Edwards indicating accident-related complaints or recommendations, beyond May 2021. I find that this evidence does not substantiate the need for continued therapy in 2022.
12I am also not persuaded that the applicant’s reported pain complaints, nor her reported partial relief of pain with treatment to s. 44 assessor Dr. Levy are enough to establish the need for the proposed treatment plan. This is because the applicant has not directed me to any contemporaneous medical opinion that has suggested the need for physiotherapy around the date of the disputed treatment plan. In any event, I find that Dr. Levy found no significant accident-related impairments and opined that the applicant had reached maximum medical recovery. Dr. Levy subsequently opined that the proposed treatment plans were not reasonable and necessary.
13Given the above, I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plans for physiotherapy services are reasonable and necessary.
The applicant is not entitled to psychological services at a rate of $149.61 per hour
14I find that the applicant has not proven, on a balance of probabilities, that the balance of the OCF-18s for psychological services are reasonable and necessary.
15The applicant did not provide the treatment plans for the proposed psychological services dated July 25, 2022, December 5, 2022, and December 19, 2023, in her submissions. Therefore, this treatment plan was not before me to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.
16In any event, even if the OCF-18s were in evidence, I find that the applicant has not met her burden.
17The applicant submits that the respondent partially approved the aforementioned OCF-18s in the amount of $99.75 per hour, as opposed to the rate of a psychologist in the amount of $149.61 per hour. The applicant further submits that psychotherapists have been regulated since 2015 under the Ontario Association of Consultants, Counsellors, Psychometrists and Psychotherapists (OACCPP).
18The respondent submits that the treatment plans were partially approved on the basis that they would be provided by a psychotherapist at an adjusted rate. The respondent further submits that the applicant has failed to prove that the difference between the hourly rate proposed by the respondent and the hourly rate charged by the service providers is reasonable.
19I am not bound by Tribunal decisions; however, I find that the cases relied on by both the applicant and respondent to be helpful in this matter given that the dispute is based on a quantum of services that is not explicitly prescribed by any legislation.
20The applicant relies on the Tribunal decision in A.S v Aviva General Insurance, 2020 CanLII 12787 (ON LAT) (“A.S”), where it was held that the treating psychotherapist was performing the same services as a psychologist and was thus entitled to payment at the same rate of a psychologist at $149.61 per hour. However, I distinguish A.S. from the present case because I find that it is unclear what specific treatment the psychotherapists will be performing and whether it would compare to the treatment the applicant would receive from a psychologist. The applicant has not directed me to evidence that would support that, in this case, the applicant would be receiving equivalent treatment from a psychotherapist as she would from a psychologist warranting payment at the rate of a psychologist. Moreover, as the applicant has not put forward the OCF-18s in dispute, I am not able to confirm which treatment provider will be delivering the psychological services.
21I am persuaded by the respondent’s reliance on the Tribunal decision in Bowen v. Aviva Insurance Company, 2024 ONLAT 21-014070/AABS, wherein it was found that there was no evidence that the psychotherapist has specialized training within the area of the proposed treatment plan, nor that the psychotherapists experience warrants being paid an hourly rate similar to a psychologist or psychological associate. The applicant has not put forward the OCF-18s for the proposed treatment plans, nor has the applicant provided the credentials of the treating practitioners for the proposed treatment plans to confirm the range and breadth of their experience. More importantly, the applicant has not provided any of the treating practitioner’s credentials as it would relate to the proposed treatment plans.
22With respect to the quantum of services, the respondent relies on the Tribunal decision in Han v Aviva General Insurance Company, 2023 CanLII 9225 (ON LAT) where it was found that $99.75 was appropriate in the circumstances. As indicated above, I am not pointed to the qualifications of the treating practitioners in the present case. Given that the respondent has approved the treatment in this amount and the applicant has not put forward evidence that would support a higher payment in the circumstances, I find $149.61 to not be reasonable and necessary.
23In sum, I find that the applicant has not proven, on a balance of probabilities, that the balance of the partially approved treatment plans is reasonable and necessary.
Interest
24As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
25I find that:
i. The applicant is not entitled to the proposed treatment plans;
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and
iii. The application is dismissed.
Released: February 11, 2025
Nadia Mauro
Adjudicator