Olaverria v. Intact Insurance Company, 2025 CanLII 135590

Citation: Olaverria v. Intact Insurance Company, 2025 ONLAT 24-006717/AABS

Licence Appeal Tribunal File Number: 24-006717/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:

Yarissa Olaverria

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Kameliya Stancheva, Paralegal

For the Respondent: Navjot Banipal, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yarissa Olaverria, the applicant, was involved in an automobile accident on June 23, 2023, 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, Intact 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 assessments and services proposed by Finch Health Centre, as follows: i. $960.00 for transportation services, in a treatment plan submitted on June 28, 2023; ii. $3,963.00 for chiropractic services, proposed by Dr. Andrew Haluskay, chiropractor, in a treatment plan submitted on November 15, 2023; iii. $623.88 ($1,995.33 less $1,371.45 approved) for a psychological assessment, proposed by Dr. Kenneth Keeling, psychologist, in a treatment plan submitted on January 18, 2024; and iv. $2,493.96 ($3,940.28 less $1,446.32 approved) for psychological services, proposed by Dr. Kenneth Keeling, psychologist, in a treatment plan submitted on March 1, 2024?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant is not entitled to the treatment plans for transportation services, dated June 28, 2023; chiropractic services dated November 15, 2023; the balance of the treatment plan for a psychological assessment, dated January 18, 2024; or the balance of the treatment plan for psychological services dated March 1, 2024.

4I find that the applicant is not entitled to interest.

5I find that the respondent is not required to pay an award.

ANALYSIS

Medical and Rehabilitation Benefits

6To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

7In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.

Entitlement to the treatment for transportation services

8I find that the applicant has not proven entitlement to the treatment plan for transportation services, dated June 28, 2023.

9The applicant claims entitlement to $960.00 for “claimant transportation to treatment”, proposed by Finch Health Centre, in a treatment plan submitted on June 28, 2023.

10The applicant submits that the respondent denied the treatment plan in dispute citing the reasons that the applicant’s injuries fell within the minor injury guideline (“MIG”) limits and as such transportation would not be covered. The applicant submits that as she was subsequently removed from the MIG on May 31, 2024, the denial of the transportation services should be reconsidered as the previous grounds for denying the treatment plan for transportation is no longer valid.

11The respondent submits that the treatment plan for transportation services was denied on the basis that provider travel is considered part of the regular business practice and is not covered by the Schedule. The respondent argues that in its denial letter dated July 14, 2023, it advised the applicant that should the transportation fall outside what is normally required, the provider may submit a detailed explanation for same. The respondent further advised that although there is coverage for travel expenses for the applicant to go to and from medical appointments, including the cost of an aide or attendant, there is a 50-kilometre deductible per trip, unless injuries have been deemed catastrophic.

12In reply, the applicant submits that the respondent has failed to consider her specific impairments and that the chronic pain and psychological assessments demonstrate that she was unable to safely or independently attend appointments due to her condition. She argues that travel expenses incurred to access necessary treatment are recoverable under the Schedule and denial on procedural or generalized cost grounds is inappropriate where functional impairments are substantiated.

13Within s. 3(1) of the Schedule is the term “authorized transportation expense”, which means, in respect of an insured person, expenses related to transportation that are authorized by, and calculated by applying the rates set out in, the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario. The definition also notes that the expense must relate to transportation expenses incurred only after the first 50-kilometres of a trip, unless the insured person is catastrophically impaired as a result of the accident.

14I find that upon review of the treatment plan in dispute, there are no particulars with respect to the transportation services being claimed. Under goals, it indicates “transportation”. I find that the applicant has not pointed the Tribunal to any medical evidence supporting that transportation expenses are reasonable and necessary. While in her reply she states that the chronic pain and psychological reports demonstrate that she was unable to safely or independently attend appointments, she has not directed the Tribunal to where in the reports, transportation services are recommended. In addition, the applicant has not demonstrated entitlement to this expense because she has not addressed the 50-kilometre deductible outlined in the definition of “authorized transportation expense”. The applicant has not sustained a catastrophic impairment and thus, the 50-kilometre deductible continues to apply. The applicant has provided no information on the physical distance that she was required to travel to treatment. Therefore, I am unable to find the expense payable without the requisite information.

15I also do not accept the applicant’s submission that the respondent was required to reassess this treatment plan upon her removal from the MIG. The respondent’s basis for the denial was that provider travel is considered part of the regular business practice and is not covered by the Schedule. The denial stated that if the applicant’s transportation needs fell outside of what is normally required, her provider could submit a detailed explanation for same. The denial further advised that there is a 50-kilometre deductible per trip, unless injuries have been deemed catastrophic. The applicant has not submitted any evidence that her provider provided a further explanation of her transportation needs to the respondent and therefore there was no requirement of the respondent to reassess the treatment plan after she was removed from the MIG.

16For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the transportation expenses proposed in the treatment plan dated June 28, 2023.

Entitlement to the treatment plan for chiropractic services.

17I find that the applicant has not proven entitlement to the treatment plan for chiropractic services, dated November 15, 2023.

18The applicant claims entitlement to $3,963.00 for chiropractic services, proposed by Dr. Andrew Haluskay, chiropractor, of Finch Health Centre Inc., in a treatment plan submitted on November 15, 2023. The treatment plan proposes the following:

Assessment (examination), total body $200.00 20 sessions of exercise, multiple body sites $1,128.20 20 sessions stimulation, muscles of the back $744.40 20 sessions manipulation, multiple body sites $855.00 20 sessions hyperthermy, multiple body sites $744.40 10 sessions of massage therapy, multiple body sites $291.00

19The goals of the treatment plan are listed as pain reduction, increase range of motion, increase strength, return to activities of normal living and return to modified work activities.

20The applicant submits that the treatment plan was denied on the basis that the applicant’s injuries were deemed to fall within the MIG. However, as of May 31, 2024, the applicant was removed from the MIG and therefore the applicant submits that this treatment plan is payable. The applicant submits that Dr. David Brooks noted in his Chronic Pain Assessment report dated November 26, 2024, that “treatment plans over and above the MIG guidelines for rehabilitation at Finch Health Inc. as regards functional restoration have been denied and my opinion is that they should have been approved. If they are approved, she would be much closer to MMR (maximum medical recovery) at this time.

21The respondent relies upon the Insurer’s Examination (“IE”) report of Dr. Ijaz Chaudhry, physician, dated January 25, 2024, which concluded that the treatment plan in dispute is not reasonable and necessary. Dr. Chaudhry opined that there was no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. He found that the applicant has likely achieved maximum medical recovery from facility-based treatment given the nature of the injuries, length of time since the accident, and quantity of treatment received to date.

22I find that while the applicant was removed from the MIG based on her psychological impairments, it is still incumbent on her to prove that the subject treatment plan recommending physical treatment is reasonable and necessary. I find that other than referring to the report of Dr. Brooks which states that the treatment plans from Finch Health should have been approved over the MIG limits, she has not provided any submissions as to why the specific treatment plan in dispute is reasonable and necessary. I find that Dr. Brooks provides a general statement that the treatment plans should be approved and does not deal with the individual treatment plan in dispute or the specific recommendations within. The applicant has not pointed the Tribunal to any medical evidence in the clinical notes and records (“CNRs”) of her treating practitioners contemporaneous to the submitted treatment plan to support the need for further chiropractic and massage therapy. In addition, the applicant has not directed the Tribunal to any other findings in Dr. Brook’s report to support entitlement to the specific treatment plan in dispute. I agree with the decision in Blas v. Aviva Insurance Canada, 2021 CanLII 127471, referred to by the respondent, that “it is well-settled that a treatment plan without supportive medical evidence is not enough to establish that the recommended treatment is reasonable and necessary.”

23I give weight to the report of Dr. Chaudhry which specifically dealt with the treatment plan in dispute and concluded that it was not reasonable and necessary. Dr. Chaudhry’s examination revealed that the applicant’s range of motion and strength testing presented normal findings across all joints, although some movements did elicit some discomfort. From a musculoskeletal perspective, he found that the applicant suffered soft tissue injuries that would be consistent with “minor injuries”. He concluded that there was no requirement for facility-based rehabilitation outside of the MIG and encouraged a home-based program. I find that the applicant has not provided any submissions to refute the findings of Dr. Chaudhry.

24For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan for chiropractic services, dated November 15, 2023, is reasonable and necessary.

Entitlement to the balance of the treatment plan for a psychological assessment

25I find that the applicant has proven entitlement to the balance of the treatment plan for a psychological assessment, dated January 18, 2024.

26The applicant claims entitlement to $623.88 ($1,995.33 less $1,371.45 approved) for a psychological assessment, proposed by Dr. Kenneth Keeling, psychologist, in a treatment plan submitted on January 18, 2024. The treatment plan recommends the following:

Assessment, mental health and addictions: $299.22 Test, mental health and addictions: $374.03 “Brokerage, service”: $149.61 “Preparation, service”: $149.61 “Documentation, support activity”: $673.25 “Planning, service”: $149.61 “Documentation, support activity for claim form” $200.00

27The respondent submits that the treatment plan was partially denied due to the lack of a detailed breakdown of the services to be provided in the treatment plan, including the components of the assessment, the providers involved, or the length of time required for each component. The respondent submits that it partially approved the assessment up to 10 hours of the practitioner’s hourly rate, which is the accepted range for a psychological assessment. Its denial letter dated May 31, 2024, further advised the applicant that to consider payment for greater than 10 hours, a copy of the report will be required along with a breakdown detailing each component of the assessment, the length of time required for each component and the practitioners providing the service.

28The applicant submits that she is entitled to the balance of the treatment plan for the psychological assessment because her injuries are outside of the MIG, and the respondent’s own psychological IE concluded that she requires psychological intervention. The applicant in reply submits that she provided a revised breakdown and narrative rationale from Dr. Keeling, which the respondent has failed to address. She argues that the psychological assessment is reasonable and necessary where psychological symptoms are present and not accounted for under the MIG.

29I find that the applicant is not entitled to the balance of the treatment plan in dispute for the following reasons.

30I find that there is no dispute between the parties that a psychological assessment was reasonable and necessary. The dispute concerns the cost of the assessment proposed. I find that the applicant has not met her onus of proving that the unapproved portion of the treatment plan is reasonable and necessary.

31I find that while the applicant refers to a revised breakdown and narrative provided by Dr. Keeling in her reply submissions, she has not directed me to this document. I find that the treatment plan dated January 18, 2024 has been provided which does not provide the number of hours required to complete the assessment or any other component of the treatment plan. I find that the applicant has not provided any evidence that a response to the respondent’s letter dated May 31, 2024 requesting more information and particulars has been provided.

32In addition, I find that the applicant has not provided any evidence to support that the psychological assessment took more than 10 hours to complete, which is the amount approved by the respondent. While the applicant may disagree with the number of hours approved, it is her onus to prove that the assessment took longer than that to perform.

33For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the unapproved balance of the treatment plan proposing a psychological assessment in the amount of $623.88.

Entitlement to the balance of the treatment plan for psychological services

34I find that the applicant has not proven entitlement to the balance of the treatment plan for psychological services, dated March 1, 2024.

35The applicant claims entitlement to $2,493.96 ($3,940.28 less $1,446.32 approved) for psychological services, proposed by Dr. Kenneth Keeling, psychologist, in a treatment plan submitted on March 1, 2024. The treatment plan recommends:

12 - 1.5 hour psychotherapy treatment sessions: $2,693.04 12 – 1 hour psychological testing: $448.80 Planning, service: $149.61 Progress report: $448.83 Completion of OCF-18: $200.00

36The respondent partially approved this treatment plan by letter dated May 3, 2024. The partial approval of the treatment plan is based on the reduction in the length of the treatment sessions from 1.5 hours to 1.0 hour. It further partially approved amounts for psychological testing, planning and the completion of the treatment plan.

37The applicant submits that the balance of the treatment plan is reasonable and necessary because she requires psychological intervention as a result of the accident. She submits that the Psychological Assessment report of Dr. Keeling, dated March 11, 2024 and the IE Psychological Assessment report of Dr. Rod Day, dated February 28, 2024, support that she requires a course of psychological intervention.

38The respondent relies upon the IE report of Dr. Day, dated May 2, 2024 which partially approved the treatment plan in dispute. He noted that “there is no compelling rationale provided regarding why 90-minute sessions are required versus conventional 50-minute sessions with the remaining 10 minutes allocated for completion of sessions notes.” Based on Dr. Day’s opinion, the respondent approved 12 one-hour sessions, rather than the 90-minute sessions proposed in the treatment plan.

39In reply, the applicant submits that the respondent’s position that treatment sessions should be only one hour in length disregards the professional judgment of Dr. Keeling, who recommended extended sessions due to the complexity of the applicant’s condition, including her symptoms of Post-Traumatic Stress Disorder (“PTSD”), depressive episodes and cognitive processing challenges that limit her ability to engage fully in shorter sessions. The applicant further argues that the respondent has failed to explain why 12 sessions of standard length should be permitted, when Dr. Keeling recommended a full course of treatment consistent with evidence-based practices such as Beck’s Cognitive Behavioural Therapy for moderate major depressive disorder and PTSD.

40I find that there are two competing opinions before me regarding the length of time the applicant needs for psychological treatment. Neither report explains why 1.0 or 1.5 hours of treatment is recommended. Both psychologists simply make their recommendation as to the length of time required for each psychotherapy session. I find that Dr. Day in his report states that there is no compelling rationale provided for provision of the proposed 1.5 hour sessions and therefore 1.0 hour sessions are approved. I find that Dr. Keeling in his report states he is recommending 12 sessions of Beck’s Cognitive Behavioural Therapy, and states that this is the gold-plate standard for the treatment of depression.

41I find that the applicant has not provided persuasive evidence to support that she requires 1.5 hour sessions. I find that the applicant has not met her onus of proving that the longer sessions are reasonable and necessary. She has not provided any medical evidence to support that providing CBT requires more time or that the severity of her symptoms requires longer sessions.

42With respect to the balance of the treatment plan in dispute, I find that neither party has made submissions with respect to these items, and therefore I find that the applicant has not met her onus of proving she is entitled to the balance of the items of psychological testing, planning and the completion of the treatment plan.

43For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that she is entitled to the balance of the treatment plan for psychological services, dated March 1, 2024.

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the no benefits are overdue, no interest is payable.

Award

45The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

46The applicant did not make any submissions with respect to her entitlement to an award in her initial submissions.

47The respondent submits that all denials and partial approvals were made in good faith, in accordance with the Schedule and the Guidelines, and were based on the records provided by the applicant at the time, including the applicant’s medical records and multiple IE reports.

48In her reply submissions, the applicant submits that the respondent has demonstrated a pattern of partial approvals and arbitrary denials, despite supportive assessments and updated documentation, which amount to an unreasonable withholding or delay of benefits under the s. 10 of O. Reg. 664.

49I find that while the respondent denied or partially approved the treatment plans in dispute, the applicant has not directed me to any evidence that the respondent disregarded evidence which resulted in the respondent unreasonably withholding or delaying payment of the disputed treatment plans. I find that the respondent was required to rely on its expert reports and to follow the recommendations in these reports. I further find that as I have found that the balance of the treatment plans in dispute are not payable, the respondent has not unreasonably withheld or delayed the payment of any benefits.

50For the reasons outlined above, I find that no award is payable.

ORDER

51For the reasons outlined above, I find:

i. The applicant is not entitled to the treatments plan for transportation services, dated June 28, 2023; chiropractic services dated November 15, 2023; the balance of the treatment plan for a psychological assessment, dated January 18, 2024, or the balance of the treatment plan for psychological services dated March 1, 2024;

ii. The applicant is not entitled to interest;

iii. The respondent is not required to pay an award; and

iv. The application is dismissed.