Licence Appeal Tribunal File Number: 24-005954/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:
Mario Genua
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Aimee Draper, Counsel
HEARD: In Writing
OVERVIEW
1Mario Genua, the applicant, was involved in an automobile accident on August 15, 2018, 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:
Is the applicant entitled to $3,656.74.00 for chiropractic services, proposed by Hydro Active Rehabilitation in a treatment plan/OCF-18 ("plan") dated July 31, 2020?
Is the applicant entitled $637.07 ($2,108.87 less $1,471.80 approved) for psychological treatment, proposed by Peter Waxer in a treatment plan dated August 26,2022?
Is the applicant entitled to $1,301.19 ($2,333.29 less $1,032.10 approved) for psychological treatment, proposed by Peter Waxer in a treatment plan dated June 1, 2022?
Is the applicant entitled to $1,540.36 ($3,230.87 less $1,690.51 approved) for psychological treatment, proposed by Peter Waxer in a treatment plan dated November 11, 2021?
Is the applicant entitled to $2,782.13 for psychological treatment, proposed by Peter Waxer in a treatment plan dated December 28, 2022?
Is the applicant entitled to $2,108.87 for psychological treatment, proposed by Peter Waxer in a treatment plan dated August 26, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to treatment plans 1, 2, 3, 4 or 6. The applicant is entitled to treatment plan number 5, in the amount of $2,782.13 for psychological services. Interest applies as per the Schedule.
ANALYSIS
Issues 2 and 3, regarding Psychological Services
4The applicant is not entitled to the disputed amounts for psychological services.
5To 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.
6The applicant claims the respondent has improperly denied the treatments, and in doing so, has violated s. 38(8) of the Schedule, because it did not provide a medical reason for the partial denial. The applicant argues they are entitled to psychological services and had ample medical evidence to support this, such as a Chronic Pain Assessment Report and a Psychological Progress Report. I shall address the s. 38(8) argument separately, and focus for now on the submission that the disputed amounts are reasonable and necessary.
7The respondent argues it has not denied medical treatment but rather that the dispute lies in the amount being paid to treatment providers. Specifically, the respondent submits that it sent a Schedule-compliant Explanation of Benefits (EOB) letter to the applicant, explaining that while it agree to pay Psychologists at an hourly rate of $149.61, they will only pay a Psychotherapist or Social Worker the lesser rate of $58.19 per hour (as per the Professional Services Guideline.)
8The respondent submits that a Psychotherapist is not the same as a Psychologist, and as such, is not entitled to a Psychologist rate. To support this submission, it relies on Hawes v Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT) where the Tribunal found that a psychotherapist is not entitled to a psychologist rate because the Professional Services Guideline (PSG) specifies service providers by designation, versus the nature of the work done.
9In the applicant's reply submission, the applicant states that the respondent is wrongly interpreting the PSG, and that the $58.19 rate is for 'unregulated' service providers, while Psychotherapists are a regulated profession within the Province of Ontario.
10While I accept that Psychotherapists are a regulated profession in the Province, I do not accept that the PSG provides clear guidance on the issue of Psychotherapists. In addition to Hawes, previous Tribunal decisions have examined the nature of the work being performed by a Psychotherapist, and whether it was essentially identical to work being performed by a Psychologist. Other factors include whether the work was under the close clinical supervision of a Psychologist or whether the psychotherapist had specialized training to warrant a higher hourly rate for their services.
11The applicant did not provide any submissions as to the nature of the work performed by the Psychotherapists in question, their credentials, or whether they were under close supervision by a Psychologist. I further find that the applicant has not provided a reason why a Psychotherapist should be paid at the same rate as a Psychologist.
12For these reasons, I find that the applicant has not met their onus, on the balance of probabilities, to establish that the partially denied amounts in treatment plans 2 and 3 are reasonable and necessary. The applicant is not entitled to the disputed amounts on the basis of them being reasonable and necessary. I shall now turn to whether or not the applicant is entitled to the disputed treatment plans because the respondent has violated s. 38(8) of the Schedule.
Has the respondent violated S38(8) of the Schedule?
13Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
14The applicant argues that s. 38(8) of the Schedule states the respondent must provide "medical and all of the other reason reasons why the insurers considers any goods, services, assessments and examinations, or the proposed cost of them, not to be reasonable and necessary." I find the insurer has not denied treatment for medical reasons, but for administrative reasons related to compensation, which is a perfectly valid "other" reason in accordance with the Schedule and the PSG.
15I have reviewed the Explanation of Benefits letters dated June 13, 2022 and November 13, 2022. I find the letter of June 13, 2022 compliant with s. 38(8) of the Schedule. The respondent clearly identifies the treatment plan in question, and outlines what it will pay for, versus what it will not agree to pay for. In this case the respondent clearly agrees to pay a Psychologist $149.61, and to pay Psychotherapists $58.19 per hour. I find this explanation is compliant with s. 38(8) of the Schedule, as it offers a clear reason for what the insurer agrees to pay for and does not agree to pay for.
16I have also reviewed the letter of November 13, 2022 (regarding issue # 2) and find that it is not compliant with the Schedule. The letter states that the OCF-18 is partially approved in the amount of $1,471.80, but it does not state why the approval is only partial. There is no reference in the letter to the different amounts for psychologist or psychotherapist compensation. Without this information, I find the insurer has violated 38(8), specifically in that it did not include "all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary."
17Section 38(11) of the Schedule outlines the consequences of violating s. 38(8), where it states: "The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)."
18As per section 38(11) of the Schedule, I find that the disputed amount of $637.07 is payable, if incurred.
Issues 1 and 4 (plans dated July 31, 2020 and November 11, 2021)
19The applicant is not entitled to either treatment plan set out in issues 1 or 4 above.
20The applicant argues that the services proposed are reasonable and necessary.
21The respondent argues that both treatment plans were denied more than 24 months ago. The respondent argues that the applicant did not bring his application forward in keeping with section 56 of the Schedule, which states that any application brought to the Tribunal "shall be commenced within two years after the insurer's refusal to pay the amount claimed."
22In the applicant's reply submission, he states that s.56 of the Schedule does not apply because the denial letters were non-compliant, hence there is no limitation period. However, the applicant has not made a submission as to why the denial letters are non-compliant, or what details have been omitted or should have been included.
23The applicant further argues that the Tribunal has the authority under s.7 of the Licence Appeal Tribunal Act (LAT Act) to extend the two-year limitation period.
24However, the applicant has not provided me with a reason as to why the Tribunal would or should extend the limitation period, or a reasonable explanation for the delay in filing the application. Following the Divisional Court's guidance in Manuel v. Registrar, 2012 ONSC 1492, the factors that the Tribunal considers on a request for an extension of time are:
i. The existence of a bona fide intention to appeal within the appeal period;
ii. The length of the delay;
iii. Prejudice to the other party; and
iv. The merits of the appeal.
25Manuel directs a holistic analysis of the factors, as no single factor is determinative. The applicant has the onus to show "reasonable grounds" for granting an extension.
26In the absence of submissions providing reasonable grounds why the limitation period should be extended or engaging with the Manuel factors above, I agree with the respondent that this is not appropriate situation to exercise my discretion to extend the limitation period.
27For this reason, I find the applicant has not met the onus, on the balance of probabilities, to establish entitlement to the treatment plans identified in issues 1 and 4 as they failed to make submissions on the purported s. 38 non compliance and did not offer submissions on the Manuel factors to extend the limitation period to allow them to challenge the denial beyond the limitation period.
Issue 5 – Psychological Services
28The applicant is not entitled to the psychological services treatment plan in dispute.
29In dispute are eight sessions of therapy from Psychologist Dr. Peter Waxer, with a stated goal of a return to pre-accident levels of psychological functioning and a functional goal of a return to the activities of normal living. The OCF-18 is dated December 28, 2022.
30The applicant submits that the EOB letter dated January 25, 2023 violates s. 38(8) of the Schedule, as it is "non-sensical and does not offer a medical reason for the denial." I will adjudicate this claim separately, below. As to whether the OCF-18 is reasonable and necessary, the applicant points to Dr. Chiodo's Psychological Report, dated November 17, 2022.
31Both parties and s. 44 assessor Dr. Chiodo agree that the applicant has a number of psychological conditions. Specifically, Somatic Symptom Disorder with Predominant Pain, Persisient; Adjustment Disorder with Depressed Mood; and Other Specified Trauma, aka Subsyndromal PTSD.
32The applicant argues that when Dr. Chiodo recommended five further treatments, "he did not substantiate the grounds and state the assumptions" which went into limiting ongoing treatment to five further sessions. As a result, the applicant argues he is entitled to further treatment.
33Although the onus is on the applicant to establish that a treatment plan is reasonable and necessary, I note that the applicant has chosen not to submit evidence to indicate whether further treatment is necessary.
34The respondent does not agree to pay for psychological services, and says the applicant has already achieved maximal psychological recovery. To support this claim, it relies on Dr. Chiodo's s. 44 psyschology report.
35Dr. Chiodo originally suggested five further therapy sessions before concluding treatments. These five sessions were approved and partially paid for as issue number 2, above.
36I agree with the respondent. Both parties are relying on the expert opinion of Dr. Chiodo. Dr. Chiodo has identified a psychological condition, but importantly, has also stated that the applicant has achieved maximal medical recovery. As a Psychologist, Dr. Chiodo is welcome to provide expert medical opinion on topics such as treatments, and when a patient has achieved maximal recovery.
37As the applicant has the onus to establish whether or not treatments are reasonable and necessary, and I have not been presented with further evidence, I find the applicant has not, on the balance of probabilities, met their onus to establish the reasonableness and necessity of further psychological treatments.
Has the respondent violated s. 38(8) of the Schedule?
38The respondent has not violated s. 38(8) of the Schedule.
39The applicant maintains that the letter of January 25, 2023 is non-sensical, and does not provide any medical reasons for the denial.
40I find that the letter clearly identified the treatment plan and provider in question, and stated clearly that the therapy that has already been provided has been necessary "to bring closure to his psychological treatment." The letter goes on to say "based on Dr. Chiodo's assessment and report, no further treatment will be approved."
41I find this is a clear denial, outlining the medical reason why the respondent will not approve further treatment.
42For this reason, I find the applicant has, on the balance of probabilities, not established that the respondent has violated s. 38(8) of the Schedule.
43As the applicant has not established that the treatment plan is reasonable and necessary, and has not established a violation of the Schedule, I find they have not, on the balance of probabilities, met their onus to establish entitlement to the treatment plan in question.
Issue 6 – Psychological Services
44The applicant is not entitled to issue 6.
45Issue 6 appears to be a duplicate of issue 2.
46The applicant has not addressed issue 6 in either his initial or reply submissions.
47In the absence of submissions, I find the applicant has not, on the balance of probabilities, met the onus to establish entitlement to the psychological services in question.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the overdue amount for treatment plan in issue 2 ($637.07), as per the Schedule and if incurred.
ORDER
49The application is partially approved.
i. The applicant is entitled to $637.07 in psychological services, identified as issue number 2 above, if it has been incurred.
ii. The applicant is not entitled to the other issues in dispute.
iii. Interest applies, as per the Schedule.
Released: December 30, 2025
Jeff Chatterton
Adjudicator