Citation: Zamore v. Aviva Insurance Company of Canada, 2025 ONLAT 24-005495/AABS

Licence Appeal Tribunal File Number: 24-005495/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:

Jeffrey Zamore

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Neisha Moses, Paralegal

For the Respondent:

Keisha Tucker, Counsel

HEARD: In Writing

OVERVIEW

1Jeffrey Zamore, the applicant, was involved in an automobile accident on February 9, 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, 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 psychological services proposed by Prime Health Care Inc. as follows:

(a) $1,845.10 ($3,641.10 less $1,796.00 approved) in a treatment plan/ OCF-18 (“plan”) submitted August 5, 2023?

(b) $1,296.58 ($2,294.58 less $998.00 approved) in a plan submitted July 26, 2024?

2. Is the applicant entitled to $4,023.00 for physiotherapy services proposed by Bounce Back Physio in a plan submitted July 9, 2024?

3. Is the applicant entitled to $2,598.81 for a chronic pain assessment proposed by Prime Health Care Inc. in a plan submitted February 15, 2024?

4. Is the applicant entitled to $2,572.81 for an orthopedic assessment proposed by Prime Health Care Inc. in a plan submitted February 15, 2024?

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

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

RESULT

3The applicant is not entitled to the treatment plans in dispute. Neither interest or an award are payable.

4The application is dismissed.

ANALYSIS

Psychological Treatment Plans

5The applicant is not entitled to the disputed amounts in the psychological treatment plans (identified as issues 1a and 1b above.)

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.

7These plans were partially approved and the dispute regarding the outstanding amounts arises out of a difference regarding the amount paid to service providers. The applicant maintains that the respondent is obliged to pay the listed service provider, a Registered Psychotherapist, a rate of $149.61 per hour, rather than the initially approved $99.75 per hour.

8The applicant submits that he has been receiving psychological services from Psychotherapist Nishrin Attari, while under the supervision of Psychologist Dr. Jaqueline Brunshaw. He submits that the Tribunal has established that a Psychotherapist provides the same service as a Psychologist, and the work should be paid at the same hourly rate. To support their position, the applicant relies upon Tribunal decision A.S. vs. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT), which found that Psychotherapists should be paid the same rate as Psychologists if they are providing identical services.

9I note, in the applicant’s submissions, that Dr. Brunshaw recommended treatment for the applicant, but “left the exact course of treatment to be decided by the treating therapist based on his functioning at the time of treatment.”

10The respondent disagrees that a Psychologist and Psychotherapist should be paid the same hourly rate, and relies upon the Tribunal’s decision in Barrie v Intact Insurance Company, 2022 CanLII 45260 (ON LAT), where the adjudicator ruled that the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”) distinguishes hourly rates based on the health care profession or provider, not the type of services provided.

11The respondent further submits that there is no evidence that the services provided by Ms. Attari were equivalent to the services provided by a Psychologist, or that Ms. Attari’s work was under close supervision by Dr. Brunshaw.

12I agree with the respondent. I find that a Psychotherapist is not the same thing as a Psychologist. Although they are both regulated professions, the qualifications and professional credentials required are substantially different. The hourly rate for psychologists is clearly set at $149.61 under the Guideline. However, no hourly rate is set for psychotherapists, but rather, the amount payable is to be determined by the parties. The applicant has not provided sufficient evidence to establish that the higher rate, payable to psychologists is appropriate in this case.

13In this particular case, I have not been led to evidence which indicates that Ms. Attari’s work was under the close clinical supervision of Dr. Brunshaw, which may justify the higher rate. In fact, as noted in the applicant’s submissions, Ms. Attari’s therapy was left to her own professional discretion. Nor has the applicant directed me to Ms. Attari’s credentials or specialized training that would warrant the higher rate.

14For these reasons, I find the applicant has not, on the balance of probabilities, met the onus to establish he is entitled to the disputed amounts for the psychological services treatment plans.

Physiotherapy Treatment (Issue 2)

15The applicant is not entitled to the treatment plans for physiotherapy.

16As noted earlier, to 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.

17The applicant submits that the treatment plans in question are reasonable and necessary. To support his position, he is relying on the Clinical Notes and Records (CNRs) of the applicant’s family physician, Dr. Puja Aggarwal, as well as the CNRs from Bounce Back Physio and Prime Health Care.

18The respondent argues the treatment plan is not reasonable and necessary. To support its claim, it relies on the s.44 IE report from General Practitioner Dr. Lamine, dated May 10, 2024. Dr. Lamine opined that the applicant had reached maximal medical recovery, does not suffer from chronic pain, had normal range of motion, and that there was no evidence of impairment from the motor vehicle accident in question.

19The respondent further argues that the applicant was the recipient of $9,225.53 worth of treatment from Physiomed Bramalea, prior to the submission of the current OCF-18 in dispute. Despite requests to review the CNRs from those visits, the respondent submits that the CNRs have not been provided to them. I was not led to a reply submission from the applicant to respond to this point, and can draw no inference from their absence.

20Finally, the respondent points to the CNRs from the applicant’s own family physician, Dr. Aggarwal. They argue that despite the applicant having visited his family physician twice for chronic pain assessments (in January 2022, which predates the accident, and April 2024), Dr. Aggarwal did not view it necessary to refer the applicant to a pain clinic or prescribe any prescriptions beyond basic non-steroidal anti-inflammatories (NSAIDs).

21While the onus is on the applicant to prove entitlement to the treatments in dispute, I have not been led to further contemporaneous evidence to support the applicant’s claim.

22I have reviewed the CNRs from Dr. Aggarwal and have not been led to a contemporaneous recommendation for the treatment plan in question

23I have also reviewed the CNRs from Bounce Back Physio, but they are handwritten and very hard to decipher. In any event, I have not been led to further treatment recommendations.

24In summary, the respondent has produced independent expert medical opinion stating that the treatments and assessments in dispute are not reasonable and necessary.

25For these reasons, I find, on the balance of probabilities, that the applicant has not met his onus to establish entitlement to the treatment plans or assessments in dispute.

Chronic Pain and Orthopedic Assessments (Issues 3 and 4)

26The applicant is not entitled to the treatment plans for Chronic Pain and Orthopedic Assessments.

27The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

28To support their claims, the applicant and respondent rely upon the same evidence outlined in paragraph 17 and 18, above.

29I note that Dr. Aggarwal makes reference to “will visit pain clinic” but it is unclear if this is a recommendation, or simply taking note of what she has been told by her patient.

30While the onus remains with the applicant, I have not been led to further evidence from the applicant to support his position.

31For this reason, I find the applicant has not met his onus, on the balance of probabilities, to prove entitlement to the disputed treatment plans.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

34As I have ruled that the respondent has not unreasonably withheld benefits, I find that no award is payable.

ORDER

35The application is dismissed.

i. The applicant is not entitled to the treatment plans in dispute.

ii. Neither award nor interest are payable.