Gallimore v. Aviva Insurance Company of Canada, 2025 CanLII 18236

Citation: Gallimore v. Aviva Insurance Company of Canada, 2025 ONLAT 23-007451/AABS

Licence Appeal Tribunal File Number: 23-007451/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:

Philicha Gallimore

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Hermia Leung, Paralegal

For the Respondent: Nicholas Maida, Counsel

HEARD: By way of written submissions

OVERVIEW

1Philicha Gallimore, the applicant, was involved in an automobile accident on February 28, 2019, 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:

i. Is the applicant entitled to $1,920.53 for a psychological assessment proposed by Dr. Harinder Mrahar of Mediwise Healthcare Centre in a treatment plan, dated April 6, 2021?

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?

RESULT

3I find that the applicant is not entitled to the treatment plan for a psychological assessment or an award.

ANALYSIS

The applicant is not entitled to the treatment plan for a psychological assessment

4I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a psychological assessment, dated April 6, 2021.

5To receive payment for a treatment plan under sections 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 entitlement to $1,920.53 for a psychological assessment proposed in a treatment plan dated April 6, 2021. This plan was completed by Dr. Harinder Mrahar, psychologist. Attached to the treatment plan is a psychological rehabilitation pre-screening report, prepared by Emmanuel Cyriac, social worker, dated March 20, 2021. The applicant was diagnosed with adjustment disorder (with mixed anxiety and depressed mood). The plan recommends the following services:

i. Mental health assessment – 2.5 hours - $374.03

ii. Mental health test – 2 hours - $299.22

iii. Planning, service – 1.5 hours - $224.42

iv. Review of external file material – 1 hour - $149.61

v. Report preparation – 4 hours - $598.44

vi. Treatment plan preparation - $200.00

vii. Communication with others - .5 hours - $74.81

7The goals of the proposed assessment as stated in Part 9 of the treatment plan are to “reduce or completely eliminate anxiety, improve emotional and social status, improve sleep, optimize coping with pain and to return to previous level of psychological functioning.”

8The applicant submits that the treatment plan for a psychological assessment is reasonable and necessary based on her psychological complaints and the reports and recommendations of her treating physicians. She relies on the treatment plan dated April 6, 2019, and the psychological rehabilitation pre-screening report (“pre-screening report”), dated March 20, 2019. She further relies upon the April 15, 2019, letter by Lisa Johnson-Adams and Dr. Kuldip Rakkar, chiropractor, which recommends a psychological assessment and psychological treatment.

9The applicant further submits that the June 29, 2021, Insurer’s Examination (“IE”) report, prepared by Dr. Mohammad Nikkhou, psychologist, should not be relied upon because Dr. Nikkhou did not review the applicant’s post-accident medical records from Dr. Khin Maung Myint, family physician, and Medwise Healthcare Centre. The applicant submits that Dr. Nikkhou’s report is contradictory in its conclusion because Dr. Nikkhou acknowledged that the applicant has psychopathological symptoms, yet he concluded that the applicant is not suffering from any significant psychological impairment or diagnosis as a result of the accident.

10The respondent submits that the treatment plan in dispute is not reasonable and necessary and relies on the findings outlined in the IE report of Dr. Nikkhou, dated June 29, 2021. The respondent further relies upon the IE report of Dr. Sheri Mackay, psychologist, dated July 23, 2019. The respondent submits that both assessors concluded that the applicant did not meet any criteria for an accident-related psychological diagnosis.

11The respondent further submits that the only support for the treatment plan in dispute is the letter from Dr. Rakkar, chiropractor, and the treatment plan itself. The respondent relies upon the Tribunal decision in Atkinson v. Economical Mutual Insurance Company, (“Atkinson”), where the Tribunal found that, “an OCF-18 is not sufficient on its own to prove that the treatment is reasonable and necessary. There needs to be contemporaneous evidence in support of the OCF-18”.

12I find that the applicant has not established that the treatment plan for a psychological assessment is reasonable and necessary for the following reasons.

13I find upon review of the clinical notes and records (“CNRs”) of Dr. Myint, family physician, that there are no references in Dr. Myint’s records of psychological complaints made by the applicant nor any recommendations for psychological treatment or a psychological assessment. I agree with the respondent’s submission that the CNRs of Dr. Myint do not note any psychological complaints made by the applicant. This is despite Dr. Myint seeing the applicant on a regular basis following the accident, both before and after the submission of the treatment plan in dispute.

14I do not give any weight to the letter dated April 15, 2019 prepared by Ms. Johnson-Adams and Dr. Kuldip Rakkar, chiropractor. I agree with the respondent that this letter was prepared two years before the submission of the treatment plan in dispute and is therefore not contemporaneous with the assessment proposal. In addition, I agree with the respondent that Dr. Rakkar is a chiropractor who is not qualified to assess psychological impairments. There is no indication in the evidence as to Ms. Johnson-Adams’ qualifications.

15I also find that the pre-screening report prepared by Mr. Cyriac, social worker, is unpersuasive and I give it little weight. The pre-screening report was based on the self-reported symptoms of the applicant. There is no reference to any psychological complaints in the applicant’s family doctor’s CNRs to indicate that she suffers from symptoms of a psychological injury which would warrant a psychological pre-screening interview and psychological testing. I further find that there is no indication within the pre-screening report as to the source of the referral, how the interview was structured, nor whether the interview was conducted in person or by telephone. There is also no indication that Mr. Cyriac conducted any testing or objective assessments of the applicant’s symptoms in preparing this report.

16Following Mr. Cyriac’s pre-screening, the applicant was assessed by Dr. Nikkhou, psychologist, who concluded in his IE report dated June 29, 2021, that there was no objective valid and reliable data to conclude that the applicant is suffering from any psychological impairment or diagnosis as a result of the accident. The findings of Dr. Nikkhou are consistent with the findings of Dr. Mackay, psychologist, who completed a psychological IE assessment, on July 23, 2019. Dr. Mackay concluded that the applicant did not suffer a psychological impairment as a result of the accident. I prefer the evidence of both Dr. Nikkhou and Dr. Mackay over the pre-screening interview of Mr. Cyriac. Both Dr. Nikkhou and Dr. Mackay performed objective testing and a comprehensive assessment of the applicant. While the applicant criticizes Dr. Nikkhou’s report because he acknowledged that the applicant may have some psychopathological symptoms, this does not negate his findings that there was no objective valid and reliable data to conclude that she has a psychological diagnosis.

17I find on a balance of probabilities that the applicant has not proven that she is entitled to the treatment plan for a psychological assessment.

18As an alternative argument, the applicant submits that she is entitled to the treatment plan in dispute because the respondent’s denial letter did not comply with the requirements of s. 38(8) of the Schedule. Specifically, the applicant claims that the letter did not correctly identify her medical condition and failed to consider the medical opinions of Mr. Johnson-Adams, Dr. Rakkar and Dr. Myint.

19Section 38(8) of the Schedule 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 s. 38(8), it must pay for the goods and services that relate to the period starting on the 11^th business day after the insurer received the application and ending on the day the insurer gives notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

20I find that the respondent’s denial of the treatment plan complied with s. 38(8) of the Schedule and therefore the applicant is not entitled to the treatment plan on this basis. Upon review of the denial letter dated August 4, 2021, I find that the letter clearly outlines the findings and conclusions of the IE report of Dr. Nikkhou, identifies the date of and services proposed in the treatment plan and states that the respondent will not fund the treatment plan.

21For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a psychological assessment.

Award

22The 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. I find an award is not appropriate. I find that there is no evidence before me of the respondent unreasonably withholding or delaying the payment of benefits and therefore no award is payable.

ORDER

23For the reasons outlined above, I find that the applicant is not entitled to the treatment plan recommending a psychological assessment or an award. The application is dismissed.