Citation: Fragomeni v. Aviva General Insurance, 2025 ONLAT 23-003314/AABS

Licence Appeal Tribunal File Number: 23-003314/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:

Bruno Fragomeni

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Sarah Guergis

APPEARANCES:

For the Applicant: Hufriz Turel, Paralegal

For the Respondent: Christina Chiu, Counsel

HEARD: In Writing

OVERVIEW

1Bruno Fragomeni, the Applicant, was involved in an automobile accident on November 3, 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 $1,919.82 ($3,585.98 less $1,566.16 approved) for psychological services, proposed by Downsview Healthcare Inc., in a treatment plan/OCF-18 (“plan”) dated August 30, 2021, partially approved September 8, 2021?

ii. Is the Applicant entitled to $11,035.00 for dental services, proposed by Downsview Healthcare Inc., in a plan dated May 24, 2021, denied December 2, 2021?

iii. Is the Applicant entitled to $12,904.59 for a chronic pain management program, proposed by Downsview Healthcare Inc., in a plan dated December 10, 2021, denied August 8, 2022?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant is entitled to psychological services in the remaining amount of $1,919.82.

4I find that the Applicant is not entitled to $11,035.00 for dental services.

5I find that the Applicant is entitled to $12,904.59 for a chronic pain management program.

6I find that the Applicant is entitled to interest on the amount owing for the treatment plan for psychological services as well as the chronic pain management program.

Procedural Issues

7The Respondent submits that the Applicant submitted their documents late which presents a concern regarding procedural unfairness, as it denies them the opportunity to properly respond to the evidence presented. The Respondent requested that the late-served document be excluded from consideration. The document in question includes the letter from Dr. Rastegar, Endodontist, dated July 4, 2024. The Respondent notes that this document was not served within the required document exchange deadline, and as such, the Respondent had no prior knowledge or opportunity to review its contents.

8Further, the Respondent submits that the Applicant has failed to provide the medical records and detailed letters from the Applicant’s treating clinicians, including those from Dr. Martinescu, Dr. Barron, and Dr. Treger, to support the claim for dental treatment. The Respondent submits that this non-compliance has hindered its ability to assess the reasonableness and necessity of the dental services being claimed.

9The Respondent further submits that the Applicant has not provided all required clinical records related to the chronic pain treatment. The Respondent requested detailed documentation, including medical records from the family doctor, insurer’s assessments, and treatment plans, to substantiate the chronic pain claim. In particular, the Respondent highlights the non-submission of prescription summaries and other relevant records that would support the claim for chronic pain treatment, which has led to gaps in the Applicant’s evidence.

10In light of the incomplete and delayed disclosures, the Respondent contends that the Applicant has failed to meet their burden of proof on a balance of probabilities, particularly with regard to the necessity and reasonableness of the medical treatments in dispute.

11The Applicant submits that the documents in question, including the letter from Dr. Rastegar, were properly served with the Applicant's initial written submissions. The Applicant contends that these documents were submitted in accordance with the procedural timeline set by the Tribunal, despite the Respondent’s claim that they were late.

12The Applicant contends that the letter from Dr. Rastegar is an integral part of the evidence supporting the claim and should be considered by the Tribunal as evidence. The Applicant further asserts that the Respondent had sufficient time to review and respond to the contents of these documents before the hearing.

13The Applicant acknowledges that there may have been delays in providing certain records requested by the Respondent but denies that this has resulted in any procedural unfairness. The Applicant submits that they have made reasonable efforts to provide the Respondent with relevant documentation, including those related to dental treatment, chronic pain, and other medical evidence. The Tribunal has the discretion to decide whether to accept late documents, and it would consider whether the applicant’s late submission prejudices the Respondent's ability to respond effectively.

14The Tribunal has the discretion to decide whether to accept late documents. I find that excluding one of the Applicant's primary pieces of evidence would be more prejudicial to the Applicant than the late submission is to the Respondent which I note had an opportunity to review and respond to the evidence in question in their submissions.

15Therefore, I deny the Respondent’s request to exclude the letter from Dr. Rastegar, Endodontist, dated July 4, 2024.

ANALYSIS

Is the Applicant entitled to $1,919.82 ($3,585.98 less $1,566.16 approved) for psychological services dated August 30, 2021?

16I find that the Applicant is entitled to the remaining amount of $1,919.82 for the treatment plan for psychological services.

17The Respondent partially paid for the treatment plan and submits that it has accepted that psychological treatment is reasonable and necessary. However, it disputes the hourly fees charged for services. The Respondent agreed to pay for these services at an hourly rate of $58.19 per hour, which is the rate for unregulated providers under the Financial Services Commission of Ontario (FSCO).

18The FSCO has published a Professional Services Guideline (Guideline) dated September 2014, Guideline No.03 /14. This Guideline sets out the maximum hourly rate for Psychologists in a non-catastrophic impairment case as $149.61 per hour. The Guideline lists some unregulated providers (Psychotherapists are not on the list) and assigns a rate to these groups as $58.19 per hour being the maximum rate to be charged. The Guideline indicates that for services provided by persons not listed in the Guideline, the rate payable is to be determined by the parties involved.

19The Applicant relies on past Tribunal decisions including Johnson v. Aviva Insurance Company of Canada, 2023 ONLAT 21-007105/AABS, to demonstrate how psychotherapy not being included in the FSCO guidelines was an oversight, and adjudicators in the past have found that as psychotherapy is providing essentially the same service as psychology, that they should be similarly payable.

20I agree with the applicant that past decisions indicate that $149.61 per hour is also reasonable and necessary for the hourly rate of psychotherapists. The treatment the Applicant is receiving is analogous to that of the services provided by a psychotherapist.

21I find the Applicant has presented evidence which proves on a balance of probabilities that this treatment plan and hourly rate of $149.61 is reasonable and necessary. Therefore, I find that the Respondent shall pay the balance of this benefit in the amount of $1,919.82.

Is the Applicant entitled to Dental services in the amount of $11,035.00, proposed by Downsview Healthcare Inc., in a plan dated May 24, 2021?

22I find that the Applicant is not entitled to the treatment plan for dental services in the amount of $11,035.00.

23I find that I was not pointed to sufficient evidence by the Applicant to establish that this treatment plan is reasonable and necessary.

24The Applicant submits that the dental injuries, which include vertical root fracture, tooth extraction, broken cuspid, and TMJ issues, resulted from bracing for the impact during the accident, and his subsequent dental treatments were recommended by healthcare providers.

25The Applicant relies on a letter from Dr. Rastegar, Endodontist, dated July 4, 2024, where he opines that the Applicant’s dental issues were likely caused or aggravated by the accident.

26The Respondent challenges the causality of the dental injuries, citing the lack of evidence linking the dental issues directly to the accident, particularly based on emergency room visits and assessments that did not mention dental trauma.

27The Respondent relies on the opinion of dental surgeon, Dr. Aviv Ouanounou from May 11, 2021. Dr. Ouanounou stated, after reviewing the history of the Applicant and the documentation received, "The file contains several undated x-rays and clinical notes from Dr. Rastegar, an endodontist but lack all the notes, clinical records and X-rays from the claimant’s general dentist Dr. Martinscu and from the Oral Surgeon Dr. Barron.”

28I find the Applicant has not provided evidence beyond the opining of Dr. Rastegar, to support that he sustained dental injuries as a result of bracing for impact.

29I agree with the Respondent that there is a lack of evidence supporting the Applicant’s argument that the proposed dental treatments are reasonable or necessary.

30Based on a balance of probabilities, I find that the Applicant has not established that the dental services are reasonable and necessary. Therefore, I do not order them to be paid.

Is the Applicant entitled to $12,904.59 for a chronic pain management program, proposed by Downsview Healthcare Inc., in a plan dated December 10, 2021?

31I find that the Applicant is entitled to the treatment plan for a chronic pain management program.

32The Applicant relies on a chronic pain assessment by Dr. Grigory Karmy, M.D, dated November 10, 2021. Dr. Karmy is a chronic pain physician certified by the Canadian Academy of Pain Management. He has been practicing in the field for more than ten years and has extensive experience in investigating and managing patients with all forms of musculoskeletal chronic pain.

33Dr. Karmy states that the Applicant’s condition is unlikely to improve completely, and treatment remains necessary to manage ongoing pain.

34Dr. Karmy submits that since the subject accident, the Applicant has been unable to perform his pre-accident housekeeping activities due to worsening of his pain and has functional limitations. Activities that require repetitive and forceful movement of upper limbs, bending, sustaining a stooped position, prolonged standing, heavy lifting, reaching overhead and pushing/pulling, significantly aggravate the Applicant’s pain. He relies on his partner to take care of household duties.

35In this assessment, Dr. Karmy diagnosed the Applicant with the following:

i. Chronic Post-Traumatic Headache, aggravated by the subject accident

ii. Possible mild Traumatic Brain Injury with associated persisting symptoms caused by the subject accident,

iii. Dental injury, caused by the subject accident

iv. Chronic mechanical neck pain, possibly with radiculopathy symptoms, aggravated by the subject accident

v. Chronic mechanical left shoulder pain, aggravated by the subject accident

vi. Chronic mechanical upper and mid back pain, likely originating from the thoracic discs and facet joints, caused by the subject accident

vii. Chronic mechanical lower back pain, possibly associated with radiculopathy symptoms, aggravated by the subject accident

viii. Sleep disorder, related to the subject accident

ix. Adjustment Disorder with Anxiety, Major Depressive Disorder, Specific Phobia (as per psychology report), related to the subject accident.

36Dr. Karmy recommended an active exercise program, physiotherapy sessions, acupuncture, massage therapy, chiropractic adjustments with spinal decompression therapy, and psychological treatments. In the assessment, Dr. Karmy, spoke directly to the Applicant to identify details of the accident related injuries, he reviewed documents related to the accident, reviewed the Applicants pre-accident medical history, reviewed the accident details, reported the Applicant’s current symptoms related to the accident, reviewed the treatments and medications that the Applicant had received, reviewed the applicant’s activities and functional limitations, and performed a physical examination.

37The Respondent disputes the claim for chronic pain treatment, stating that the treatment is not warranted given the lack of supporting evidence and that the Applicant does not meet the criteria for chronic pain syndrome as required under the AMA Guides.

38The Respondent relies on a report from Dr. Mehdi Lotfalizadeh, Psychologist and Dr. Alborz Oshidari, Physiatrist, from July 29, 2022. Dr. Lotfalizadeh, is a licensed Clinical Psychologist with over 29 years of experience in assessment and intervention with psychologically challenged claimants. The emphasis of his practice is in the assessment and treatment of the sequela of psychological trauma. No professional designations for Dr. Oshidari were included in the report.

39Dr. Oshidari assessed the Applicant's chronic pain and concluded that the treatment was not reasonable or necessary, as there were no objective findings or physical impairments that could be attributed to the motor vehicle accident.

40In this report, Dr. Oshidari acknowledges that the Applicant performs activities of daily living with discomfort and pain, and that his partner has been assisting him.

41The Respondent also questions how the Applicant meets the criteria for chronic pain syndrome under the AMA Guides, asserting that the Applicant does not meet the necessary conditions, such as excessive dependency on painkillers, inability to restore pre-injury function, and the development of psychological sequelae related to the accident.

42The Respondent submits that the Chronic Pain Report of Dr. Karmy should be given limited weight as the assessor did not review the clinical notes and records of the family doctor and numerous insurer’s assessment reports. The Respondent submits that the Applicant fails to meet the Tribunal’s required factors based on the AMA Guides to establish chronic pain syndrome.

43I do not find that the Applicant needs to meet the criterion of Chronic Pain Syndrome to receive a diagnosis of chronic pain. I agree with the Applicant that the evidence provided in the report from by Dr. Karmy is sufficient evidence that chronic pain has been diagnosed and requires treatment. I also find that the treatment recommended by Dr. Karmy is reasonable and necessary.

44Dr. Karmy stated optimal pain control would allow the applicant to reintegrate to a normal life, and that is the main goal of the treatment plan in dispute. He specifically recommends an active exercise program, physiotherapy sessions,

45acupuncture, and massage therapy, chiropractic adjustments and spinal decompression therapy. He further recommends an updated MRI of the cervical and lumbar spine if it has not yet been done.

46On a balance of probabilities, I find that the Applicant has demonstrated the reasonableness and necessity of this treatment plan. Therefore, I order this benefit to be payable.

Interest

47I find that interest is payable on the remaining amount for the psychological services treatment plan and for the chronic pain management program pursuant to s. 51 of the Schedule.

ORDER

48I find that the Applicant is entitled to psychological services, proposed by Downsview Healthcare Inc, in the remaining amount of $1,919.82.

49I find that the Applicant is not entitled to $11,035.00 for dental services.

50I find that the Applicant is entitled to $12,904.59 for a chronic pain management program.

51I find that the Applicant is entitled to interest on remaining amount of the treatment plan for psychological services and the treatment plan for a chronic pain management program.